IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE
STATE OF TENNESSEE, ex rel, ) MARIE OSONG DAVIS, ) ) Plaintiff/Appellant, ) Davidson Circuit No. 94R-462 ) VS. ) Appeal No. 01A01-9702-CV-00090 ) DAVID MATIKKE, ) ) Defendant/Appellee. )
APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE MURIEL ROBINSON, JUDGE
FILED October 17, 1997
Cecil W. Crowson JOHN KNOX WALKUP Appellate Court Clerk Attorney General & Reporter KIMBERLY M. FRAYN Assistant Attorney General Nashville, Tennessee Attorneys for Appellant
PAUL N. RUDOLPH Nashville, Tennessee Attorney for Appellee
REVERSED AND REMANDED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J. Plaintiff State of Tennessee, on behalf of Marie Osong Davis, appeals the trial
court’s order modifying the child support obligation of Defendant/Appellee David Matikke.
The trial court’s order of modification reduced Matikke’s child support obligation from $580
per month to $342.33 per month. For the reasons hereinafter stated, we reverse the trial
court’s modification order and reinstate the trial court’s previous order requiring Matikke to
pay child support in the amount of $580 per month.
The trial court’s original order resulted from a Maryland URESA1 petition filed on
behalf of Davis in April 1994. The petitioner sought an adjudication that Matikke was the
father of Davis’s minor child, Megan Ekwopi Osong, born April 8, 1989, as well as an order
of child support. When subsequent genetic testing established a 99.32% probability of
paternity, the trial court entered an order adjudicating Matikke to be Megan’s father.
Thereafter, Matikke agreed to pay child support for Megan in the amount of $580 per
month. Per this agreement, in March 1996 the trial court entered an order requiring
Matikke to pay $580 per month retroactive to February 9, 1996.
Five months later, in August 1996, Matikke filed a motion to reduce the amount of
child support previously established in the agreed order entered by the trial court. As
grounds therefor, Matikke alleged that he had filed a divorce action against his wife in July
1996; that Matikke and his wife had three minor children, all of whom were older than
Megan; that Matikke desired to provide for the support of Megan and the three minor
children of his marriage; and, finally, that a strict application of the Tennessee Child
Support Guidelines would work “a serious inequity and disadvantage for the three children”
of Matikke’s marriage.
The trial court granted Matikke’s motion and entered an order modifying the
previous order of child support entered in March 1996. In support of its decision, the trial
court reasoned that:
1 Uniform Reciprocal Enforcement of Support Act. For Tennessee’s current version of the Act, see T.C.A. §§ 36 -5-201 to -229 (199 6).
2 4. The parties to the Divorce action [Matikke and his wife] and their three minor children comprise the primary family unit.
....
6. The court heretofore [in the divorce action] ordered [Matikke] to pay child support to [his wife] in the amount of 41% of [Matikke’s] net monthly income, or $1,133 per month.
7. The child for whom [Matikke] is obligated to pay child support in this action is not a member of the primary family unit.
8. The paramount interest of preserving the primary family unit requires that the amount of child support to be paid for the benefit of a child who is not a member of the primary family unit be calculated by applying the appropriate percentage of the child support obligor’s net monthly income after deduction of the amount of child support being paid for the benefit of the primary family unit.
In calculating Matikke’s modified child support obligation for Megan, the trial court
reduced Matikke’s net income of $2,763 by $1,133, the amount of support Matikke was
ordered to pay for the marriage’s three minor children. From Matikke’s remaining net
income of $1,630, the trial court ordered Matikke to pay twenty-one percent (21%), or
$342.33, as support for Megan. The trial court’s order of modification was entered on
September 11, 1996, two days after entry of the pendente lite support order in the divorce
action.
On appeal, the State contends that the trial court erred in modifying its previous
order of support entered on behalf of Megan based on the pendente lite order of support
subsequently entered in Matikke’s divorce action. We agree because, while the trial court
was required to consider the previous order of support for Megan in establishing Matikke’s
child support obligation in the divorce proceeding, the trial court’s subsequent pendente
lite order entered in the divorce action was an improper basis upon which to modify the
prior support order for Megan.
In establishing a parent’s child support obligation, the trial court is required to
consider previous orders of support for the obligor’s other children. Specifically,
3 Tennessee’s Child Support Guidelines require the trial court, in determining the obligor’s
net income from which child support is calculated, to subtract “the amount of child support
ordered pursuant to a previous order of child support for other children.” Tenn. Comp. R. &
Regs. tit. 1240, ch. 2-4-.03(4) (amended 1994) (emphasis added).
In construing this provision of the Guidelines, this court has held that, in order for
a prior support obligation to constitute a “previous order,” the obligor “must be both
ordered by a court and actually paying” child support pursuant to that order. Boyd v. Boyd,
No. 02A01-9210-CH-00294, 1993 WL 8379, at *1 (Tenn. App. Jan. 20, 1993); accord
Kirchner v. Pritchett, No. 01A01-9503-JV-00092, 1995 WL 714279, at *5 (Tenn. App.
Dec. 6, 1995) (obligor’s net income may not be reduced by payments for support of other
children unless payments are being made pursuant to court order). The requirement of a
previous court order “insures the awarding court that the obligor is legally liable for the
amount of child support claimed as a deduction.” Tower v. Tower,
No. 02A01-9407-CV-00170, 1995 WL 650131, at *9 (Tenn. App. Nov. 3, 1995).
Although the Guidelines do not define what is meant by a “previous order,” generally
accepted definitions for “previous” include “[a]ntecedent; prior; before” and “going before
in time or order.” Black’s Law Dictionary 1070 (5th ed. 1979); Webster’s Ninth New
Collegiate Dictionary 933 (1990). Applying these definitions, we conclude that, for
purposes of calculating Matikke’s child support obligation under the Guidelines, the only
“previous” order that the trial court properly could consider was the initial order of March
1996 establishing Matikke’s child support obligation for Megan. This March 1996 order
clearly preceded the September 1996 pendente lite order for Matikke’s other three
children.
The plain import of the Guidelines’ language is that, in calculating the amount of
child support to be ordered in Matikke’s divorce action in September 1996, the trial court
was required to consider its previous order of child support for Megan entered in March
1996. Instead, the trial court calculated Matikke’s child support obligation in the divorce
4 action as if the March 1996 order for Megan did not exist. The trial court compounded its
error by then using the incorrectly calculated support obligation in its pendente lite order
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IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE
STATE OF TENNESSEE, ex rel, ) MARIE OSONG DAVIS, ) ) Plaintiff/Appellant, ) Davidson Circuit No. 94R-462 ) VS. ) Appeal No. 01A01-9702-CV-00090 ) DAVID MATIKKE, ) ) Defendant/Appellee. )
APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE THE HONORABLE MURIEL ROBINSON, JUDGE
FILED October 17, 1997
Cecil W. Crowson JOHN KNOX WALKUP Appellate Court Clerk Attorney General & Reporter KIMBERLY M. FRAYN Assistant Attorney General Nashville, Tennessee Attorneys for Appellant
PAUL N. RUDOLPH Nashville, Tennessee Attorney for Appellee
REVERSED AND REMANDED
ALAN E. HIGHERS, J.
CONCUR:
W. FRANK CRAWFORD, P.J., W.S.
DAVID R. FARMER, J. Plaintiff State of Tennessee, on behalf of Marie Osong Davis, appeals the trial
court’s order modifying the child support obligation of Defendant/Appellee David Matikke.
The trial court’s order of modification reduced Matikke’s child support obligation from $580
per month to $342.33 per month. For the reasons hereinafter stated, we reverse the trial
court’s modification order and reinstate the trial court’s previous order requiring Matikke to
pay child support in the amount of $580 per month.
The trial court’s original order resulted from a Maryland URESA1 petition filed on
behalf of Davis in April 1994. The petitioner sought an adjudication that Matikke was the
father of Davis’s minor child, Megan Ekwopi Osong, born April 8, 1989, as well as an order
of child support. When subsequent genetic testing established a 99.32% probability of
paternity, the trial court entered an order adjudicating Matikke to be Megan’s father.
Thereafter, Matikke agreed to pay child support for Megan in the amount of $580 per
month. Per this agreement, in March 1996 the trial court entered an order requiring
Matikke to pay $580 per month retroactive to February 9, 1996.
Five months later, in August 1996, Matikke filed a motion to reduce the amount of
child support previously established in the agreed order entered by the trial court. As
grounds therefor, Matikke alleged that he had filed a divorce action against his wife in July
1996; that Matikke and his wife had three minor children, all of whom were older than
Megan; that Matikke desired to provide for the support of Megan and the three minor
children of his marriage; and, finally, that a strict application of the Tennessee Child
Support Guidelines would work “a serious inequity and disadvantage for the three children”
of Matikke’s marriage.
The trial court granted Matikke’s motion and entered an order modifying the
previous order of child support entered in March 1996. In support of its decision, the trial
court reasoned that:
1 Uniform Reciprocal Enforcement of Support Act. For Tennessee’s current version of the Act, see T.C.A. §§ 36 -5-201 to -229 (199 6).
2 4. The parties to the Divorce action [Matikke and his wife] and their three minor children comprise the primary family unit.
....
6. The court heretofore [in the divorce action] ordered [Matikke] to pay child support to [his wife] in the amount of 41% of [Matikke’s] net monthly income, or $1,133 per month.
7. The child for whom [Matikke] is obligated to pay child support in this action is not a member of the primary family unit.
8. The paramount interest of preserving the primary family unit requires that the amount of child support to be paid for the benefit of a child who is not a member of the primary family unit be calculated by applying the appropriate percentage of the child support obligor’s net monthly income after deduction of the amount of child support being paid for the benefit of the primary family unit.
In calculating Matikke’s modified child support obligation for Megan, the trial court
reduced Matikke’s net income of $2,763 by $1,133, the amount of support Matikke was
ordered to pay for the marriage’s three minor children. From Matikke’s remaining net
income of $1,630, the trial court ordered Matikke to pay twenty-one percent (21%), or
$342.33, as support for Megan. The trial court’s order of modification was entered on
September 11, 1996, two days after entry of the pendente lite support order in the divorce
action.
On appeal, the State contends that the trial court erred in modifying its previous
order of support entered on behalf of Megan based on the pendente lite order of support
subsequently entered in Matikke’s divorce action. We agree because, while the trial court
was required to consider the previous order of support for Megan in establishing Matikke’s
child support obligation in the divorce proceeding, the trial court’s subsequent pendente
lite order entered in the divorce action was an improper basis upon which to modify the
prior support order for Megan.
In establishing a parent’s child support obligation, the trial court is required to
consider previous orders of support for the obligor’s other children. Specifically,
3 Tennessee’s Child Support Guidelines require the trial court, in determining the obligor’s
net income from which child support is calculated, to subtract “the amount of child support
ordered pursuant to a previous order of child support for other children.” Tenn. Comp. R. &
Regs. tit. 1240, ch. 2-4-.03(4) (amended 1994) (emphasis added).
In construing this provision of the Guidelines, this court has held that, in order for
a prior support obligation to constitute a “previous order,” the obligor “must be both
ordered by a court and actually paying” child support pursuant to that order. Boyd v. Boyd,
No. 02A01-9210-CH-00294, 1993 WL 8379, at *1 (Tenn. App. Jan. 20, 1993); accord
Kirchner v. Pritchett, No. 01A01-9503-JV-00092, 1995 WL 714279, at *5 (Tenn. App.
Dec. 6, 1995) (obligor’s net income may not be reduced by payments for support of other
children unless payments are being made pursuant to court order). The requirement of a
previous court order “insures the awarding court that the obligor is legally liable for the
amount of child support claimed as a deduction.” Tower v. Tower,
No. 02A01-9407-CV-00170, 1995 WL 650131, at *9 (Tenn. App. Nov. 3, 1995).
Although the Guidelines do not define what is meant by a “previous order,” generally
accepted definitions for “previous” include “[a]ntecedent; prior; before” and “going before
in time or order.” Black’s Law Dictionary 1070 (5th ed. 1979); Webster’s Ninth New
Collegiate Dictionary 933 (1990). Applying these definitions, we conclude that, for
purposes of calculating Matikke’s child support obligation under the Guidelines, the only
“previous” order that the trial court properly could consider was the initial order of March
1996 establishing Matikke’s child support obligation for Megan. This March 1996 order
clearly preceded the September 1996 pendente lite order for Matikke’s other three
children.
The plain import of the Guidelines’ language is that, in calculating the amount of
child support to be ordered in Matikke’s divorce action in September 1996, the trial court
was required to consider its previous order of child support for Megan entered in March
1996. Instead, the trial court calculated Matikke’s child support obligation in the divorce
4 action as if the March 1996 order for Megan did not exist. The trial court compounded its
error by then using the incorrectly calculated support obligation in its pendente lite order
from the divorce proceeding to justify modifying Megan’s child support award. In this
regard, we reject Matikke’s contention that, because the order modifying child support for
Megan was entered subsequent to the pendente lite order, the pendente lite order
somehow qualified as a “previous” order. We are particularly reluctant to adopt such a
strained construction in the present case, where the trial court failed to comply with the
Guidelines when it calculated the pendente lite award.2
In reviewing the Child Support Guidelines, we can find nothing therein which would
support the trial court’s modification of Megan’s previous support order based on a
subsequent support order for other children. Moreover, we find nothing in the language
of the Guidelines to support the position that, in establishing child support obligations, trial
courts should give preference to children belonging to the obligor’s “primary family unit.”3
If anything, the Guidelines express a preference for children for whom a child support order
is established first in time, regardless of whether the child was the product of a valid
marriage or whether the child ever resided with the obligor. We recognize that this
preference may work to the detriment of children for whom a subsequent order of child
support is entered. We believe, however, that this is an argument more appropriately
addressed to the General Assembly or to the Department of Human Services, the entity
responsible for promulgating the Child Support Guidelines.4
The trial court’s order modifying child support is hereby reversed, and this cause is
remanded for reinstatement of the trial court’s previous order of support entered in March
2 W e recognize that the September 1996 pende nte lite orde r is not the subje ct of this app eal. In addressing the propriety of the pen den te lite order, however, we note that neither the State nor Davis were a party to the divorce action and, thus, had no standing to appeal the pen den te lite order.
3 W e also question the trial court’s stated goal of “preserving the primary fam ily unit,” inasm uch as it appears that the purpose of Matikke’s divorce petition is just the opposite.
4 In amending the Child Support Guidelines in Decem ber 1994, for example, the Department of Human Services responded to criticism of the October 1989 version by clarifying some of the Guidelines provisions. See Kirch ner v. Pritchett, No. 01A01-9503-JV-00092, 1995 W L 714279, at *5 n.5 (Tenn . App. Dec. 6, 1995 ).
5 1996 and for any further proceedings consistent with this opinion. Costs of this appeal are
taxed to Appellee, for which execution may issue if necessary.
HIGHERS, J.
CRAWFORD, P.J., W.S.
FARMER, J.