No Contempt When TN Father Pays Child Support Based on Modified Order
Tennessee law case summary on child support in divorce and family law from the Court of Appeals.
Penelope Lynne Allen v. Gordon Carmack Allen – Tennessee divorce and child support law
The father and mother were divorced in 2001 and were the parents of one four-year-old child. The mother was named the primary residential parent, and the father was ordered to pay child support of $642 per month, plus 21% of any overtime or bonus payments. The trial court also initially ordered the father to provide proof of his income on a quarterly basis. In 2003, the trial court increased the payments to $1038 per month. It held the father in contempt for failing to provide the proof of income, but the 2003 order did not contain the requirement to provide proof of income. It also did not contain any provision about overtime or bonus.
In 2011, the mother filed another petition for contempt, since the father had not provided proof of income since 2003. She also sought payment of arrearages based on his actual income. The trial court granted this order, and also awarded the mother her attorney fees. The father appealed to the Tennessee Court of Appeals.
On appeal, the father argued that the 2001 order calling for fluctuating child support was no longer in effect, since the 2003 order did not call for a percentage of overtime and bonus. He also argued that the 2003 order no longer required him to offer proof of income, as called for by the original 2001 order.
The Court of Appeals first noted that the practice of setting child support as a percentage of income has been discouraged since a 2001 opinion of the Court of Appeals. Instead, the modern practice is to calculate a definite amount which does not fluctuate. That case was in effect in 2003, and the Court of Appeals noted that the earlier 2001 order had never been incorporated by reference into the 2003 order. In fact, the Court of Appeals noted that the fluctuating income had already been taken into account when the trial court made its 2003 order. Therefore, the 21% requirement was no longer in effect after 2003, and it was improper to modify the amount retroactively. Therefore, the Court of Appeals reversed the judgment for the alleged arrearages.
The Court of Appeals also found that the 2003 order did not require the father to provide proof of his income. Therefore, it also reversed the finding of contempt and the award of attorney fees. Contempt is not proper unless the original order was clear, specific, and unambiguous. And in this case, that standard was not met.
The Court of Appeals also assessed the costs of the appeal against the mother.
No. M2012-02266-COA-R3-CV (Tenn. Ct. App. Oct. 9, 2013).
See original opinion for exact language. Legal citations omitted.
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