In Hibbens v Rue Tennessee Appellate Court Affirms Retroactive Child Support

It’s common practice for parents to bring child support issues before Tennessee courts in the context of a divorce, or to get a child support order if the parents aren’t married or Child Support raising their child together. Retroactive child support allows a court to order support for an earlier period when no order was in place.

The child at issue in Richard Lee Hibbens v. Ashley Elizabeth Rue was born in February 2010. His parents were unmarried and filed a joint petition to establish parentage in Chancery Court, which entered an order establishing parentage and approving a permanent parenting plan submitted by the parties. The order designated Ashley Rue (Mother) as the primary residential parent. It provided that Richard Hibbens (Father) would be the alternate residential parent and pay child support in the sum of $300 per month. This amount was calculated based on Mother having 250 days of parenting time with the child and Father having 115 days. Father was serving in the United States Marine Corps at the time, but he and Mother both resided in Cleveland, Tennessee.

The parties subsequently attended mediation and reached an agreement as to various issues. Approximately one year after the parties’  mediated agreement, Father filed an application for emergency relief due to Father having been deployed to Afghanistan. Father’s petition was limited to issues regarding his long-distance communication with Child and visitation between Child and Father‘s family during the upcoming holidays. The parties entered an agreed order resolving these issues. The agreed order provided that when Father returned to the United States, the court‘s previous order would remain in effect.

In what appeared to be anticipation of Father‘s return from deployment, Mother filed a petition seeking an order retroactively setting child support pursuant to the mediation agreement. Mother asked the court to set child support in accordance with the child support guidelines retroactive to the earlier order. Mother also asked the court to order the parties to attend mediation and to enter a permanent parenting plan based on the parties’ current circumstances.

Two days later, Father filed an application for emergency relief or for a prompt hearing, acknowledging that the parties were still operating under the earlier order incorporating the mediated agreement. He asked the court to instruct the parties as to how to proceed on parenting time pending further mediation. After an unsuccessful attempt at mediation, the trial court entered an order on parenting time but reserved all other issues for the final hearing.

The trial court entered a written order and permanent parenting plan. Regarding retroactive child support, the order provided the following:

Based on the number of days Father was provided under the mediated agreement, the trial court awarded Mother retroactive child support in the amount of $3,935 for the period of December 1, 2011 to September 30, 2013.

Within thirty days of the entry of this order, Mother filed a Motion to clarify. The trial court entered a written order granting in part Mother’s motion to clarify. The trial court found that its previous order did not answer the issue on the deviation of child support requested by Mother. The trial court held that for the period of time between the parties’ mediation agreement until August, 2013, the calculation of child support will be based upon the actual number of days that the Father visited which increased Father’s retroactive child support obligation to $9,752 rather than $3,935.

Father appealed to the Tennessee Court of Appeals at Knoxville asking a review of the following:

  1. Did the trial court err in considering and ruling on Mother‘s motion to clarify the December 26, 2013 order, when this order encompassed a ruling on Mother‘s previously filed motion to alter or amend;
  2. Did the trial court err in calculating Father‘s retroactive child support obligation based on the actual number of days he visited with the child when it was impossible for him to visit due to his military service and deployment overseas.

The Appellate Court affirmed the lower court’s decision as it relates to calculating Father’s retroactive child support obligation stating, in part, the following:

Father seems to argue that this Court should craft some type of exception due to his military service and the fact that it was impossible for him to exercise his parenting time. Decisions regarding child support must be made within the strictures of the Child Support Guidelines. We certainly appreciate and commend Father‘s service to our country; however, the fact remains that he is obligated to financially support his child, even when he is serving overseas. Mother was required to provide care for the child in Father‘s absence, and it is not inequitable to consider the number of days that Father was unable to provide such care when calculating child support.

If you are due retroactive child support, for whatever reason, you should seek the services of an experienced divorce lawyer. Contact Attorney Donna Wagner for a consultation.

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