Private School Tuition and Attorney’s Fees Reversed in Memphis, Tennessee Child-Support Modification: Pierce v. Pierce

FactsMother and Father divorced in 2011. By agreement, they share equal parenting time with their three children. They also share joint decision-making authority, except the provision for educational decision-making has this qualifying statement:

Father may solely determine whether the children will continue to attend Briarcrest at his cost. If Father elects to continue to pay private school tuition for the children to attend Briarcrest for the 2012-2013 school year and thereafter, he shall bear sole financial responsibility for the tuition, uniforms, and other Briarcrest-required expenses for all three children.

Six years later, Mother petitioned to modify Father’s child-support obligation because his monthly income had nearly quadrupled since the divorce.

Tennessee child supportFather counter-petitioned to require Mother to pay 50% of the children’s private school expenses.

The trial court found a significant variance existed so Father’s child-support obligation should be modified. The trial court also found it would not be in the children’s best interest to change from Briarcrest to public school. The cost of Briarcrest — $2041 per month — was included in Father’s column as a work-related child care expense.

Mother requested her attorney’s fees of $10,700. Father presented no proof that Mother’s fees were unreasonable. Father’s counsel simply argued that each party should pay his or her own fees. Father was ordered to pay $2500 of Mother’s attorney’s fees, less than 25% of the total.

Mother appealed.

On AppealThe Court of Appeals reversed the trial court.

In Tennessee, child-support orders are governed by Tennessee’s Child Support Guidelines, which have the force of law. Tennessee courts must use the Child Support Guidelines to obtain consistent child-support awards.

Private School Expenses. The Court held the trial court erred by apportioning the private school expenses between the parties via the child-support worksheet:

We note that an agreed permanent parenting plan should be interpreted as any other agreement. . . . In resolving a dispute concerning contract interpretation, our task is to ascertain the intention of the parties based upon the usual, natural, and ordinary meaning of the contract language.

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[B]y ordering that the children continue to attend Briarcrest and also requiring that the parties share in the costs of such enrollment, the court effectively modified the parties’ agreed [parenting plan] regarding educational decision-making authority as well as private school tuition expense without making any determination that a substantial and material change in circumstance had occurred warranting such modification.

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Because the trial court failed to make this threshold determination before modifying the parties’ [parenting plan], we must vacate the resulting modifications.

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We conclude that the parties’ [parenting plan] should be enforced as written, such that Father may continue with the children’s enrollment in Briarcrest so long as he agrees to be solely responsible for the costs related to same. If Father does not wish to pay for the children to remain enrolled at Briarcrest, the parties should jointly determine where the children will attend school in accordance with the [parenting plan’s] provisions.

Attorney’s fees. Tennessee Code Annotated § 36-5-103(c) provides that a parent may recover attorney’s fees from the other parent in any action enforcing a child-support order. This statute authorizes an award of attorney’s fees incurred in an action to increase child support.

The Court held it was error to award Mother less than 25% of her attorney’s fees:

[F]ather enjoyed a significant increase in income for approximately 2 ½ years before Mother became aware of the change and sought a modification of Father’s child-support obligation. Mother prevailed in her efforts at the trial court level to demonstrate that a significant variance existed warranting an increase in Father’s child-support obligation. Therefore, pursuant to Tennessee Code Annotated § 36-5-103(c), the trial court erred in failing to award Mother the full measure of her reasonable attorney’s fees incurred in seeking to protect the children’s interests. . . . [T]he trial court should enter an award of attorney’s fees to Mother for all reasonable fees she incurred at the trial court level while successfully petitioning for an increase in Father’s child-support obligation.

The trial court’s judgment was reversed and the matter remanded for hearing on Mother’s attorney’s fees. Mother was also awarded her attorney’s fees incurred on appeal.

Pierce v. Pierce (Tennessee Court of Appeals, Western Section, November 19, 2018).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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