Parent Must File Petition to Modify Child Support; Unilateral Modification Ends in Child Support Arrearage in Shelby County Juvenile Court

STATE EX REL. JANA RUTH ALFORD NICHOLS v. RANDALL NELSON SONGSTAD, (Tenn.Ct.App. May 17, 2018).

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TRIAL COURT:   Father and Mother were divorced in the Chancery Court of Shelby County on January 30, 2006. A Permanent Parenting Plan was entered on May 17, 2006, which required Father to pay child support for the parties’ two minor children in the amount of $1,154.00 per month. The plan included the language “[t]he parents acknowledge that court approval must be obtained before child support can be reduced or modified.” Father and Mother both signed the plan.

In 2011, the eldest of the parties’ two children emancipated after she graduated high school. After her emancipation, Father unilaterally prorated his child support payments by approximately fifty percent without filing a petition to modify or bringing his modification request before the court in any way. Mother, however, accepted Father’s reduced child support payments for the next four years, until the parties’ youngest child also emancipated in 2014.

Mother, who became a Texas resident after the parties’ divorce, applied for Title IV-D assistance in Texas in 2014. After receiving little to no assistance in Texas, Mother filed for contempt in the chancery court. The State of Tennessee then filed a notice of Title IV-D services and a notice to transfer to the Shelby County Juvenile Court. The matter was administratively transferred to the juvenile court pursuant to Tennessee Code Annotated section 36-5-402. The state then filed a petition to establish arrears and/or to modify order in the juvenile court. The matter was continued several times and was finally heard on June 9, 2016, by Magistrate Debra Sanders. The juvenile magistrate entered her findings and recommendations on June 21, 2016, in which the magistrate granted, in part, the petition to establish arrears and modify child support, as to the establishment of arrears only. The Magistrate additionally established arrears in the amount of $29,994.00 to be paid monthly by Father in the amount of $1,154.00 beginning July 1, 2016. Father filed a timely motion to rehear requesting a rehearing before the Presiding Judge.

On July 27, 2016, Special Judge Nancy Percer Kessler heard the case. The court entered an order on the same day finding that Father’s request for rehearing was granted and taken under advisement. The juvenile court entered its final order on August 25, 2016, in which it found that Father was in arrears in the amount of $29,994.00. Father timely appealed this order.

COURT OF APPEALS:  Father asserted on appeal that a parent may unilaterally prorate child support without requesting a modification from the court upon emancipation of the child because (1) a parent has no duty to support a child once he or she has reached the age of majority and (2) proration of child support is not considered a “modification” of a child support award. The Court of Appeals disagreed. The Child Support Guidelines control this case, and they require Father to seek a modification from the court and establish a significant variance prior to modifying his child support obligation.

Applying the unambiguous Child Support Guidelines applicable in this case, it is clear that Father was not entitled to unilaterally modify his child support obligation upon the emancipation of his eldest child. Rather, the Child Support Guidelines applicable in this case provide that even where a reduction in child support is based upon the emancipation of a child, i.e., “a change in the number of children for whom a parent is legally responsible,” two requirements must be met: (1) the parent seeking the modification must file a petition and provide notice to the opposing parent; and (2) the party seeking the reduction must show that a significant variance exists to warrant modification. Here, Father never requested permission from the court to modify his child support obligation. See Tenn. Comp. R. & Regs. 1240-02-04-.05(8). To the contrary, the only pleadings filed by Father were filed in response to Mother’s request for an arrearage judgment. Consequently, Father failed to file any petition or take any action for modification in court.  Because Father never sought any relief from the court, no notice was given to Mother.  Additionally, because no petition was filed, Father failed to establish that a significant variance existed to warrant modification of his child support obligation. See id. at 1240-02-04-.05(2)(c), 1240-02-04-.05(6). In fact, Father failed to present any evidence that his child support as calculated under the income shares model would have been reduced in any fashion due to the change in number of children for whom Father was legally responsible. As a result, Father was not in compliance with the controlling income shares guidelines and acted without authority in prorating his child support obligation upon emancipation of his oldest child.

http://www.tncourts.gov/sites/default/files/nicholsjanaruthalfordopn.pdf

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