Facts: Father and Mother divorced in 2011. They agreed to equal parenting time. Father, an active military member, paid $450 monthly in child support.
Several years later, Father petitioned to request a retroactive child support modification. Father alleged that both parents’ incomes had changed significantly since the divorce. Father retired from the military in 2017 and was found to be 100% disabled because of service-connected injuries. Father received only disability pay. He argued that federal law prevents a Tennessee court from considering his disability pay as income for child support purposes.
The trial court rejected Father’s argument because Tennessee’s Child Support Guidelines include disability benefits from the VA in the list of what courts must consider when determining a parent’s gross income for child support. The trial court increased Father’s child-support obligation from $450 to $649 retroactive to the date he began receiving disability benefits.
Father appealed. He argued that federal law may preempt a valid state law under the Supremacy Clause of the U.S. Constitution, rendering it with no effect.
Mother argued that Father waived his preemption argument by failing to notify the Tennessee Attorney General of his challenge to the validity of a provision in the child support guidelines.
On Appeal: The Court of Appeals affirmed the trial court.
Tennessee law requires that the Attorney General be given notice and an opportunity to be heard whenever the constitutional validity of a state statute or regulation is at issue. Compliance with this law is required. A litigant’s failure to provide timely notice can be fatal on appeal.
The Court of Appeals ordered Father to serve a copy of his appellate briefs on the Attorney General’s office. The Attorney General responded that it would defend the validity of the guidelines, but it argued the Court of Appeals should consider Father’s preemption argument waived.
Federal preemption arguments are waived for lack of notice unless the challenged statute “is so clearly or blatantly unconstitutional as to obviate the necessity for any discussion.”
The Court found the child support guidelines are not clearly or blatantly unconstitutional:
Father insists waiver is inappropriate here because he raised his preemption argument in the trial court. And he gave belated notice to the Attorney General after oral argument in this Court to “cure” his previous noncompliance. But Father overlooks the importance of timely notice and protecting the public’s interest. Notice enables the Office of the Attorney General to discharge its responsibility to defend the constitutionality of state statutes…. Here, the Attorney General had no notice or opportunity to be heard when the preemption issue was before the trial court.
Under the circumstances, we deem Father’s preemption issue waived. Father did not notify the Attorney General of his constitutional challenge to the child support guidelines until after the trial court had made its decision and for over a year after this appeal was filed. The important public interest objectives served by the notice requirement were not met.
Because the Court considered Father’s federal presumption issue waived, the trial court’s judgment was affirmed.
Source: Miller v. Miller (Tennessee Court of Appeals, Middle Section, August 21, 2024).
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