Date for Retroactive Child Support Modification Disputed in Memphis, Tennessee: Schwager v. Messer

FactsMother and father are the divorced parents of two children.

While Father’s child-support obligation should have been $1205.00, the parties agreed to deviate downward to $1000.00. Their agreed parenting plan from February 2009 explains:

The parties agree that this child-support amount is a downward deviation to allow Father two years to pay a greater share of his income toward the marital debt that Father is obligated to pay in the Marital Dissolution Agreement. Upon the conclusion of two years from the date of entry of the Final Decree of Divorce, the parties shall exchange their financial information and proof of income, and the child support shall be recalculated. The parties agree that at that time, Father shall not use the aforementioned justification for a continued deviation.

Tennessee child supportSix years later, in May 2015, Mother petitioned to modify child support retroactive to February 2011 to reflect Father’s true child-support obligation after the two-year grace period agreed to in the parenting plan.

The trial court found that from February 2011 through May 2015, Father’s child-support obligation should have been $3200 per month.

It also found Father’s child support obligation from May 2015—when Mother petitioned to modify it—and thereafter to be $3200 per month.

The trial court ruled that Father should not be held accountable for retroactive child support for the February 2011 to May 2015 period because no petition to modify had been filed.

Mother appealed.

On AppealThe Court of Appeals affirmed the trial court.

Tennessee Code Annotated § 36-5-101(f)(1) says that child support “shall not be subject to modification as to any time period or any amounts due prior to the date that an action for modification is filed . . . .”

Tennessee courts interpret this provision as prohibiting the retroactive modification of a child-support order, even upon equitable grounds.

What about the parties’ agreement memorializing their parenting plan? Tennessee courts hold that parties’ agreements regarding child support are subject to modification by the court once they are merged into a divorce decree. Only agreements to extend a parent’s child-support obligation past the age of majority remain enforceable as contracts rather than merging into the divorce decree.

The Court agreed with how the trial court handled this:

[T]he trial court lacks authority to modify Father’s child-support obligation prior to the time of filing of Mother’s petition to modify.

* * * * *

[B]ecause Mother did not file the petition seeking to modify Father’s child-support obligation in any respect until 2015, the trial court correctly ruled that Father’s child-support obligation could not be modified for any time prior to the date of filing of Mother’s petition.

The trial court’s judgment was affirmed.

Tennessee Court of AppealsK.O.’s Comment: This opinion is 29 pages long. While the Court addresses other issues raised by the parties not covered here, the opinion contains much unnecessary detail. Appellate judges could increase the number of people that read these opinions—something I encourage all family-law attorneys to do—if the writing was more concise and pared of needless detail.

Schwager v. Messer (Tennessee Court of Appeals, Western Section, September 27, 2019).

Posted by

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.

Leave a Comment