Facts: The parties are the divorced parents of two children. When they divorced in 2014, they agreed to divide the private-school tuition for both children equally.

Five years later, Father’s child-support obligation of $731 was modified to include Father’s portion of the children’s private-school expenses, bringing the total obligation to $815.21 per pay period. It also provided that private-school expenses would be shared pro rata “in the same ratio that their incomes bear” in the future.

The following year, Father petitioned to modify the parenting plan, including his proposal that the parties return to equally dividing the children’s private-school expenses.

The trial court found an upward deviation for private-school expenses was appropriate “since both boys are in private school, have been in private school for their entire lives, and are flourishing in private school.” The order required Father to pay support of $815.21 per pay period “for his combined child support and private-school tuition.” This was the same amount as two years earlier. The trial court also granted Mother’s request for attorney’s fees of $23,000.

Father appealed.

On Appeal: The Court of Appeals vacated the trial court’s judgment.

Tennessee’s Child Support Guidelines provide the process and criteria for determining a parent’s child-support obligation. Trial courts may deviate from the support required by the Guidelines under certain circumstances, including for “extraordinary educational expenses” like private-school tuition. Specifically, the Guidelines say:

Extraordinary educational expenses may be added to the presumptive child support as a deviation. Extraordinary educational expenses include, but are not limited to, tuition, room and board, lab fees, books, fees, and other reasonable and necessary expenses associated with special needs education or private elementary and/or secondary schooling that are appropriate to the parents’ financial abilities and to the lifestyle of the child if the parents and child were living together.

If a deviation is allowed for extraordinary educational expenses, a monthly average of these expenses shall be based on evidence of prior or anticipated expenses and entered on the Worksheet in the deviation section.

The Court found the upward deviation appropriate but faulted the trial court for not properly calculating the amount:

[T]here is no dispute in this case that keeping the children in private school is in the children’s best interests, and the trial court made sufficient findings of fact and conclusions of law regarding same. During the [] hearings, Father agreed that the children were thriving in their respective schools and agreed that he should be responsible for an equal portion of the children’s private-school tuition.

Consequently, we agree with the trial court that an upward deviation in Father’s presumptive child support for extraordinary educational expenses is appropriate and serves the children’s best interests. Not only did Father concede this at trial, but the record is replete with testimony that both children are doing well in school, are active in school sports and extracurricular activities, and have many friends.

We agree with Father, however, that no updated proof of any educational expenses, tuition or otherwise, was offered during the hearings. We also agree with Father that the deviation portion of the operative child-support worksheet should reflect a monthly average of the children’s private-school tuition and expenses for which Father is responsible.

Accordingly, we vacate the portion of the trial court’s order providing that Father shall pay $815.21 per pay period for both child support and his share of the extraordinary educational expenses. Because extraordinary educational expenses are an upward deviation, the monthly amount owed is to be calculated separately and added to the Father’s base obligation of $731 per month, pursuant to the Guidelines.

The case was remanded for the trial court to hear updated proof about the children’s private-school expenses.

K.O.’s Comment: Here’s something I haven’t seen before. In granting Mother’s request for attorney’s fees, the trial court awarded fees to Mother’s counsel as opposed to Mother. Tennessee Code Annotated § 36-5-103(c) provides for an award of fees to the “prevailing party.” Mother is the prevailing party, not her lawyer. So, the Court modified the trial court’s judgment to reflect that Mother is the person awarded a $23,000 judgment against Father.

Taylor v. Taylor (Tennessee Court of Appeals, Eastern Section, October 27, 2022).

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