TN Probate Judge Can’t Consult Old Divorce File for Child Support Owed
Tennessee child support law case law summary on collection and enforcement from the Court of Appeals.
In Re Estate of James Edgar Miller – Tennessee divorce collection of child support.
Norma Jean Wallace and James Edgar Miller were divorced in 1975. The wife was awarded custody of the couple’s daughter, and the husband was ordered to pay $90 per month in child support. The husband died in 2010. The wife filed a claim against the estate, alleging that she had never received any child support. Her claim was in the amount of over $68,000.
The daughter testified that she had received some financial assistance over the years, but she did not know whether the husband had made any payments to the wife. The only other evidence was entries from the divorce file, indicating some instances where the husband had “stopped paying” support. The trial court denied the wife’s claim, finding that her testimony was unreliable. The wife appealed to the Tennessee Court of Appeals.
The Court of Appeals first noted that the party seeking delinquent child support has the burden of proof of the amount due. However, the Court of Appeals held that it was improper for the trial court to take judicial notice of the court records from the prior divorce case. That proceeding had never been resolved, because there was no order one way or another. It appeared that there might have been a resolution, but there was no evidence of that fact in the court file.
Normally, the judgment of the lower court would be affirmed, because the trial court was in the best position to weigh the credibility of the witnesses. But in this case, the credibility determination was based upon improperly taking judicial notice of the divorce case file. And since the trial judge had already made that credibility determination, the Court of Appeals ordered that the case should be heard by a different judge on remand.
No. E2012-00648-COA-R3-CV (Tenn. Ct. App. Jan. 22, 2013).
See original opinion for exact language. Legal citations omitted.
For more information, see Tennessee Child Support Answers to FAQ’s. For legal updates, news, analysis, and commentary, visit our Tennessee Family Law Blog and its Child Support category. A Memphis child support attorney from the Miles Mason Family Law Group can help you with Tennessee child support issues including setting or modifying child support. To schedule your confidential consultation about Tennessee child support, call us today at (901) 683-1850.
