Is Your Child Support Order Really Subject to Change?
Posted by Martin Heller Potempa & Sheppard, PLLC on March 8, 2019
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You suffered through the divorce process. No doubt you’re happy to have it behind you. It’s no wonder you are upset when you learn your former spouse has filed paperwork with the courts. As you read through the documentation, you discover you’re being brought back to court for a modification of the final divorce decree. Is your child support order really subject to change?
In the back of your mind, you are fuming. You just want to go on with your life. However, when you have children with someone else, your ties continue to some extent. Money becomes only one of the issues.
Either the custodial parent or noncustodial parent can apply to the court for modification of a child support order. Under Tennessee law, specifically, TN Code § 36-5-101, you need to prove a substantial and material change in material circumstances in order to make an application. Here are some examples of what the court might consider in lowering or raising child support obligations:
You lost your job
Your employment has changed
Your income or the other parent’s income has increased or decreased
Custody or visitation has changed
The number of children you are legally responsible for has changed
You or your child has become disabled
When you first parted ways with your child’s other parent, you supplied the court with information relative to your particular situation. You will need to accumulate updated documentation to prove to the court what warrants a change to the existing child support order. This includes proof that there has been a significant variance in income.
Multiple Reductions to Child Support Order
Believe it or not, some couples return to court on numerous occasions proposing reductions or increases to child support payments. In fact, you may be interested in Reid v. Reid, decided by the Court of Appeals in August 2018.
The Reids divorced on May 25, 2011. The final decree named Kellye Ann Reid as the primary residential parent and ordered Mitchell Sherman Reid to pay $814 in monthly child support payments. The couple has two children together.
Less than a year after they divorced, Mitchell petitioned the court for a reduction in his child support obligations. On October 21, 2011, the amount decreased to $672.00 per month. They were modified a second time on August 26, 2014. This time, the trial court reduced the monthly amount to $288.
The story does not end here. On May 26, 2015, Mitchell petitioned the court once again for modification of the child support obligation “to a more equitable amount.” The father cited his own decrease in earnings and an increase in Kellye Ann’s income. He claimed both factors “represented a “material change of circumstances as well as a significant variance.”
In response to Mitchell’s petition, Kellye Ann accused her child’s father of attempting to hide income from the court. In her view, since Mitchell was self-employed, he was able to juggle his earnings by “paying family members unwarranted amounts and/or putting assets in others’ names.”
As far as Kellye Ann was concerned, Mitchell’s claims as far as a significant variance and material change in circumstances were not true. Kellye Ann then filed a counter-petition regarding parenting time. In doing so, Kellye Ann suggested a modification of support payments for the extra time the children would be with her. She also asserted that Mitchell actually had an increase in earnings since the last child support modification.
Not Just About Repeated Modification Requests
All things considered, the Reid matter is not just about repeated requests for modification of the child support orders. When the trial judge heard the case, both petitions were denied. In fact, the trial court found Mitchell to be voluntarily underemployed.
Both parties appealed the trial court’s decision. The Court of Appeals reviewed financial documentation submitted by Mitchell. This included 1099 forms associated with his income and delineation of business expenses. The income tax returns and testimony supported Mitchell’s contention that his income decreased.
That said, the Court of Appeals did not find that Mitchell was intentionally underemployed. Nevertheless, they found credible evidence that Mitchell inflated his expenses and assigned some of his business to his brother. The court remanded the case back to the trial court for calculation of imputed income.