Facts: Father and Mother are the divorced parents of two children. Father’s child-support obligation was $1755 per month.

Because of a significant decrease in income, Father petitioned to modify his child support. Although the hearing began in 2017, several delays prevented it from concluding until 2 ½ years later. Although Father had a lawyer when the case started, he represented himself for much of the case.

When the trial finally ended, the trial court reduced Father’s child support to $500 per month. On the issue of whether the modification should be retroactive, the trial court found:

• This was a long and complicated matter made more complicated by Father’s lack of understanding of the law and his overly aggressive approach.
• Father’s litigiousness resulted in excessive delays. Needless motions concerning parenting and discovery were filed and adjudicated.
• It was not in the children’s best interest for Father to continuously update or involve the children in this litigation. This conduct served to delay the support modification hearing.
• Father repeatedly violated this Court’s orders with respect to medical decision-making. His constant disobedience of court orders increased delay.
• Father’s numerous pleadings and irrational knee-jerk reactions such as calling the police when Mother was two minutes late caused additional problems and needless litigation.
• While Father’s income has decreased since the last child support order, he still has a higher earning potential than Mother.

For these reasons, the trial court declined to make the change retroactive to the date Father filed his petition, instead making it effective as of the last day of the trial.

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

Tennessee courts have the discretion to order the child-support modification effective as of the date of the modification petition, the date of the final hearing, or any date in between.

When a Tennessee court determines a support modification should not be retroactive to the filing of the petition to modify, the court must provide an adequate factual or legal basis for its decision.

Appellate courts should permit a discretionary decision to stand if reasonable judicial minds can differ concerning its soundness.

The Court found no error in the trial court’s decision not to make the change retroactive to the date Father filed his petition:

During the periods when Father was represented by an attorney, the case progressed efficiently because few pleadings were filed. . . . [T]he trial court had to repeatedly delay the last day of the support modification hearing in order to address all of the other motions Father filed.

[T]he court found that, based on a comparison of Father’s education and work experience compared with those of Mother, Father has the potential to earn substantially more money than Mother. Thus, the court implicitly found that, although Father did overpay a significant amount of child support while the case was pending, he faced less resulting hardship than Mother would face if ordered to repay the discrepancy. Based, in part, on that finding, the court concluded that the equities of the case required it to exercise its discretion not to order the modification retroactive to the filing of the petition to modify. The record contains no evidence contradicting the trial court’s findings. Father, therefore, fails to establish that the trial court abused its discretion in determining when the reduction in child support was to begin.

The Court affirmed the trial court’s judgment.

K.O.’s Comment: Mother sought attorney’s fees on appeal relying on Tennessee Code Annotated § 27-1-122, the statute governing “frivolous” appeals.

Under this theory, Mother could only recover attorney’s fees if the Court found Father’s appeal was “so devoid of merit as to warrant the award of damages,” which the Court rarely finds and did not find here.

The odds of prevailing on a “frivolous appeal” argument are long. Recovery is reserved for the most egregious, most indefensible, worst-of-the-worst cases.

The far better argument is to seek attorney’s fees under Tennessee Code Annotated § 36-5-103(c), which applies to child support, child custody, alimony, etc. Litigants relying on this statute have an exponentially greater chance of recovering attorney’s fees on appeal.

Choose the path of least resistance.

Church v. Jones (Tennessee Court of Appeals, Eastern Section, May 24, 2021).

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