Facts: Father and Mother divorced in 2014. They have a daughter who needs constant care and supervision because of her severe disability.

Father, a commercial pilot, agreed to exercise four nights of parenting time per month with Daughter, but he rarely used this parenting time.

In 2017, Father petitioned to modify his alimony and child-support obligations because Mother was now receiving 50% of his pension.

Mother, who earned $13 an hour when Daughter was in school, testified that the cost of a qualified caregiver was $15 per hour. Mother also said she could not afford respite care to give herself time to attend to her own needs. Daughter will eventually age out of the school system, making it impossible for Mother to work or have time to care for herself when Father fails to exercise his parenting time.

The trial court ordered an upward deviation for Father’s child support for his failure to exercise parenting time:

Due to [Daughter’s] severe disability, Mother should be able to count on Father exercising this overnight visitation in order to give Mother some “relief” or “downtime” from her constant care of [Daughter]. . . . Mother has to pay $15 per hour for a “respite” [caregiver] if she wants to leave [Daughter] or have any personal time. . . . If Father declines to exercise his parenting time, he shall reimburse Mother [$15] per hour for each hour he fails to visit pursuant to the [parenting] plan.

Father appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Father argued the trial court erred in ordering him to reimburse Mother for his missed parenting time as a variable child-support obligation subject to modification. He claimed such variable awards are prohibited as Tennessee courts must set a “specific amount” of child support.

The Child Support Guidelines establish a rebuttable presumption for how child support should be calculated. The presumptive child-support order may be increased according to the child’s best interest, the circumstances of the parties, and other reasons set out in the Guidelines.

The Guidelines provide:

In instances of extreme economic hardship, such as in cases involving extraordinary medical needs not covered by insurance or other extraordinary special needs for the child . . . deviation from the Guidelines may be considered . . . . In such cases, the tribunal must consider all resources available for meeting such needs, including those available from agencies and other adults.

The Court found an upward deviation appropriate under the circumstances:

Mother’s need for respite care was considered in the court’s initial award of alimony; however, Father’s agreed-upon parenting time has been reduced from 124 days to 48 days since that time. Father has also consistently failed to exercise a significant amount of his already limited coparenting time, leaving Mother to care for Daughter in his stead. In consideration of the foregoing, an upward deviation in the amount of support owed is indicated by the circumstances of the parties.

* * * * *

The cost of respite care is an extraordinary special need and in Daughter’s best interest given her severe disability. Indeed, Daughter may not be left by herself or with someone unfamiliar with her special needs. Mother also cannot provide adequate care without some break in her services, not including her work responsibilities that admittedly do provide her with some separation. The court considered all resources available for meeting this need, either Father or a qualified caregiver at the rate of approximately $15 per hour. Under the circumstances, we uphold the court’s upward deviation in child support when the amount of the special needs expense is readily ascertainable.

The Court affirmed the trial court’s upward deviation.

K.O.’s Comment: Lawyers must remember that Tennessee Code Annotated § 36-5-101(k) allows for child support for a “severely disabled” child to extend beyond their legal emancipation if it’s in the child’s best interest and the obligor can financially continue paying support.

Kibbe v. Kibbe (Tennessee Court of Appeals, Eastern Section, January 30, 2020).