When TN Father Did Not Visit Children His Child Support Was Increased
Tennessee child support law case law summary on child support enforcement and collection from the Court of Appeals.
John Clarence Howard, Jr. v. Linda Joyce Keaton Howard
This case involves a request for child support payments for one minor child.
The mother, Linda Joyce Keaton Howard, and the father, John Clarence Howard, were divorced in March 1990. At that time, the couple’s two children were minors. During the trial in 1997, the father testified that his income for 1997 was just over $57,300 a year. This included his income at Allstate Insurance Company (just over $89,300) as well as losses (due to the difference between income and expenses) in the amount of just over $32,700 from his private sports card business, J.C.H. Enterprises. The mother also worked at J.C.H. Enterprises.
The trial judge refused to deduct the business loss from the father’s income. The court used the child support guidelines to determine child support for the one remaining minor child at $1,159 per month, with an upward deviation of $255 per month because the father did not regularly visit the child. The total child support award, with the upward deviation, was $1,413 per month. The court also ordered the father to pay medical bills, back support payments and legal fees for the mother. The father appealed these decisions.
Legal fees awarded to enforce child support
The appeals court reviewed the trial court’s calculation of the father’s income. The child support guidelines include income from self-employment for the purposes of determining the amount of child support to be paid. Only “reasonable expenses” may be deducted from the income earned in self-employment. The parent obliged to pay child support must prove that the expenses were indeed reasonable. In the current case, the father did not meet this burden of proof.
The father also argued against the upward deviation of his child support. He claimed that the court had no standing to make this change since the issue was not explicitly raised in the pleadings. The court explained that according to the guidelines, if either party asks for a modification of child support, the court can increase or decrease the amount if there has been a variance, or change, in the obligor’s income.
The law permits the court to make upward deviations since the guidelines provide only the minimum amounts of child support required. The court has this discretion in a number of instances, but the relevant one for this case deals with visitations. The law states that if the children are not staying with the obligor/father for an average of every other weekend from Friday evening to Sunday evening, two weeks during the summer vacation and two other holiday weeks during the year, than child support is increased to compensate the obligee/mother for the additional expenses incurred while the children remain with her. The father in this case did not visit his children for three or four years, justifying an increase in his child support.
The Appeals court also required the father to pay $3,000 for the mother’s legal fees, holding that this award is appropriate in order to enforce a child support decree. In such a case, there is no need for the requesting party (in this case, the mother) to show need because the aim of such an award is to protect the children, not the parents. Forcing a parent who brings a request for child support modification, in the event that the request is unjustified, to pay the other parent’s legal fees, is the correct approach. This is especially true in this case where the mother was brought to the court twice by the father for child support modification claims and both times succeeded in her claims.
No. 03A01-9811-CV-00374, 1999 WL 427596 (Tenn. Ct. App. June 25, 1999).
See original opinion for exact language. Legal citations omitted.
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