Facts: Father and Mother, the parents of two children, divorced after 18 years of marriage.

The trial court approved their agreed parenting plan that required Father to pay monthly child support of $2500. This includes an upward deviation of $1050 reflecting the parties’ agreement that the deviation would help “ensure that the minor children are able to maintain the lifestyle they were accustomed to during the marriage.” The agreement further provided that when the oldest child graduates from high school, child support will be reduced to $1500 per month until the youngest child graduates high school.

Six months after the divorce, Mother petitioned to change the parenting plan to permit her relocation to Kentucky. Father counter-petitioned to change custody.

Father also moved to set aside the divorce decree based on the “misrepresentation” that the $1050 upward deviation in child support would only be owed for six months. Father also wanted the support order to reflect his support of another child he fathered during the marriage with another woman.

The trial court changed the parenting schedule to allow Mother’s relocation and give Father 15 more days.

The trial court denied Father’s motion to set aside the divorce decree and declined to change child support because there was not a 15% difference between the current support obligation in the proposed support obligation.

Father appealed.

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

In Tennessee, a child-support order is eligible for modification when there is a “significant variance,” which is defined as at least a 15% difference between the current obligation and the proposed obligation.

To figure out whether a significant variance exists, the trial court must compare the existing child support to the proposed amount and must not include any previously ordered deviations or proposed deviations in the comparison.

If the circumstances that caused the deviation have not changed, the child support obligation may be changed only if other circumstances, such as an increase or decrease in income, would cause a significant variance between the current amount—excluding the deviation—and the proposed amount.

The Court found the trial court properly excluded the upward deviation when it found there was not a significant variance:

According to the [parenting plan], the goal that precipitated the deviation was “to ensure that the minor children are able to maintain the lifestyle they were accustomed to during the parties’ marriage.” … From the evidence, there is simply no proof that Father’s lifestyle has changed since the divorce. In short, the reason for the upward deviation in his child-support obligation (i.e., to ensure that the children enjoyed a lifestyle similar to that enjoyed during the marriage) has not changed. In the absence of a change in the circumstances that resulted in the deviation, a modification of the original child-support order would be proper only if there were other circumstances that would lead to a significant variance between the amount of the current order, excluding the deviation, and the amount of the proposed order.

Father asserts that his child-support obligation should be reduced because he now has another child who should be factored into the child-support calculations. Father further asserts that his support obligation should be reduced because he has 15 more days of parenting time with the parties’ two children under the new parenting plan. It is true that Father now enjoys more parenting time, but when the upward deviation is excluded from the calculation, the change in parenting time does not result in a significant variance. The original child-support worksheet attached to the agreed [parenting plan] indicated that Father’s child-support obligation was $1406 before the upward deviation. Fifteen percent of $1406 is $210.90. Thus, a difference of $210 between the original support amount of $1406 and the proposed support amount would reflect a significant variance. In its child-support worksheet, [] the trial court credited Father with a third child and adjusted the parenting days; this resulted in a child-support obligation of $1288, which is a difference of only $118. Therefore, when the upward deviation is removed from the calculation, the evidence does not preponderate against the trial court’s finding that there was not a significant variance so as to warrant a change in Father’s support obligation.

Finding no error in the trial court’s decision to reinstate the upward deviation in Father’s child-support obligation, the Court affirmed the trial court’s judgment.

Tigart v. Tigart (Tennessee Court of Appeals, Middle Section, September 24, 2021).

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