</font><blockquote><font size="1" face="Verdana, Arial">quote:</font><hr /><font size="2" face="Verdana, Arial">Originally posted by angelia:
[QB]

How do you change that - write your congressman? who legislates that?

QB]</font><hr /></blockquote><font size="2" face="Verdana, Arial">yes. Write your congressman, write to your state representatives. There are people in the weeds working to change the laws. Right here on this site we have Mshermi working on our behalf, ferreting out information for us, cdcollins has dedicated her life to law and CS reform, Popeye who no longer posts here is working on a book of case studies with her OC Research. People like you and me and the others here need to get busy writing and fighting and talk loud and draw a crowd. Nothing is going to change unless it starts with us.

Catnip =^^=

There is no fairness or equality in the court system as long as the original family remains intact. If the couple remain married, then the ow will get 17-25% right off the top, no matter how many children there are within the marriage, simply because the children in the marriage are not part of a new court order, so therefore, the courts do not care about them, only the child pertaining to the court ordered support. As far as the courts are concerned, your child/ren are nonexistant. A total travesty in our system. They are always balking about what is best for the children, except they decide which children.

That in its self is a violation of your childrens first ammendment rights to equal protection.

A man in Tn. recently used that argument took his court ordered support to the supreme court and won just on those grounds. He had an affair with a married woman several years ago, he paid his support, stayed away so she could work on her marriage. Her marriage failed and she came after him for more money, by then he had gotten married and had 3 small children with his wife. He told the court about his other children, they said to bad, they were only concerned with the child of the court order and raised his support another $300.00 per month. Well, he decided that his other children were just as important and no one was telling him otherwise. He appealed on the grounds above and won. Thanks to him, Tn. must revise there cs system to make it equal for all the children, not just the chosen few.

You have to fight the system. ow won't do it, it is less money for them, they aren't concerned for your children as you can tell by reading here and there. They are going to take there money and run and leave your children finacially suffering. Heaven forbid should the right thing be done and work out something ammicably that doesn't make the BS's children suffer even more. No, to mad for that, it's a get everything I can and to hell with his other kids attitude.

The real classy ow do the right thing. They take responsibility for there part in the mess they helped create, they then think about everyone involved, yes including the BS, and they put ALL the children first and work out something with the family that works for all involved. They put there own angry feelings aside and do what is best for all. There are a few that are here that have done just that and they are getting along just fine, hell they even have the father and his family involved in the oc life. Isn't that what is best? I guess for some it is, for others, it just isn't enough. They want it all. Why? because they are pissed, and it is still all about them.

Great day in the morning! I decided to go over to GB to catch the post and I must have missed some things? Where is the part about refurbishing floors or $34,000/yr in CS??? Hell, that's more than I make a year! I was thinking that she was stressed out because her OC needed medical care and the XMM refused to put the child on his insurance even though it wouldn't cost him anything more to do so. I think if that were my H I would certainly cave to putting the OC on insurance to avoid more legal troubles (but that's just me.) Although I don't think it costs $34,000 a year to raise a child (geographic location doesn't make THAT much of a difference does it???) I would have to disagree with statement that it costs next to nothing to raise a child. I remember when I used to get paid $35/week to babysit TWO children back when I was a teenager. To me, Daycare expenses are ASTRONOMICAL these days! (But again, that just me.) But I do realize that Enfamil, Similac, and those Gerber foods cost money. It would be great if you could limit a kid to just 3 bottles a day and maybe a bottle of water for a snack...then maybe they wouldn't grow so damn fast and you have to buy 12 month old clothes for a 6 month old baby <img border="0" title="" alt="[Roll Eyes]" src="images/icons/rolleyes.gif" /> I guess we are lucky because I don't think what we have to pay is an absurd amount (but then again having to pay because this whole entire SITUATION is absurd is a whole different story) and the fact that it comes out of a military allotment and we never miss it or are reminded of it helps ALOT. The OC is enrolled in DEERS so insurance isn't really an issue either.

Mshermi....who do you fight the system with? I'd be happy to fight for my kids. Maybe that's a question I'll ask the attorney tomorrow.....Seems to me that if TN is changing their cs rulings then other states may be doing so too.....
So, am I right in assuming that if me and H divorce then I can take him to court for cs for our kids and that would reduce his support to OW?
I'm all for that one too! (Although the thought of even a faux divorce might not sit too well with my H - it's all too new)
Thanks for any advice.

A

mshermi--The court DOES take into consideration children born BEFORE the OC or any other child being "weighed" for support. It is children born AFTER an OC that aren't factored in. In most states child support is very cut and dried. They look at the mom's income, the dad's income and how many dependents each has already living at home and they figure out CS from there. They DO NOT consider the BW's income. In our case my income is much higher than my H's so we got a pretty good deal in terms of CS since I pretty much support my H--34,000 is abt what he makes in a year and I make triple that, but because I didn't have the EMA I don't have to pay a portion of my income, so that seemed quite fair to me. To the court's credit, they don't discriminate between OCs or CS figured for divorcing parents. The logic behind LATER children not changing the amount of CS due to the earlier children is that the father and/or mother KNEW that they had this fiscal responsibility BEFORE they went ahead and had a bunch of other kids. If you can't afford to pay a CS amount that has already been factored for an older child, why would you have a bunch more kids? Vasectomy time!! Now in the case of Cat NIP (sorry abt the Cat's PAW, I like NIP better anyway), she and her H have every right to lower CS payments in the wake of extreme changes to their financial status. Also, often in these cases a WH is asked to take out a life insurance policy payable to the OC in case he dies before the OC reaches his/her 18th birthday. I think a lot of times the WH is much, much older than the OW and so it IS possible that he could die before his OC turns 18, so the life insurance policy makes sense. Anyway--these laws are meant to protect single mothers and their children NO MATTER HOW THE CHILDREN ARRIVED ON EARTH. As a feminist and a Christian, I think it's a great thing that we have these laws and I do think the laws are just and equitable JMHO. I think if you are dignified and try to do the right thing by the OC the courts will be very favorable. What the judges HATE is to see the WHs dragging things out in a useless attempt to dog CS payments for his OC--in these cases a judge may well overdo payments for the OW and OC but only because the WH acted like such a coward. My H wanted to waste our money in a law suit against our xOW and his OC and act like a coward but I refused to let him and I think it really helped our case. We settled quickly and quietly and are all trying to heal from this and move on. My only prayer is that one day the OC can become a part of our lives.

Angelia,

I am not fighting the system with anyone at this moment, just little ole me trying to fight it with a few ladies from here. I just scour for any and all imformation I can find that might help these ladies. I am a second wife dealing with a greedy 1st wife, that is how I got started in all this. One day I stumbled upon this site and was just appalled at what I was reading. I have been looking for info since that could be of use here. I am becoming more and more active though. I have been sending letters to congressman, Indiana supreme court (got a typical reply <img border="0" title="" alt="[Roll Eyes]" src="images/icons/rolleyes.gif" /> )talking with attorneys, anything I can think of. You have to be just like Catnip said, BE LOUD AND DRAW A CROWD. There are some fathers rights groups that are fighting for reform. You just need to be careful with some of those, they can be really extreme in there way of thinking.

Where are you from? What state?

Yes, if you file for support FIRST, then you get your cut first, she will get her % from what is left, which makes it much smaller. I don't think you would have to file for faux divorce, just file for a seperation. Someone on the board did just that, i'll let her come to you with that info, she may not want to open it up to the public. I am sure she'll come along and offer her guidance to you.

Melissa

Melissa,

Could you let me know where you get your info for TN?
I live in TN...and we deal with a vindictive exW too...

If you want my email.. you can get it from Catnip... or I can post it here.

Thanks in advance.

"mshermi--The court DOES take into consideration children born BEFORE the OC or any other child being "weighed" for support'

There are to many states that are totally cut and dried-they take a certain percent no matter what. If there is a new court order for a child, that is the only child they are concerned with, hence the lawsuits that are popping up all over the place, because the courts would not consider the other children, even the first born, especially in these circumstances.

I have to disagree with having a bunch more kids scenario. No one has a right to tell anyone how many kids they should have. Everyone has a right to procreate. So a young man who is young and dumb has a child, he is ordered to pay support, he finally grows up and gets married. He and his wife have a right to have a family. just because he was irresponsible at one time, he should not have to put the rest of his life aside so he can pay support for that one child. If he so chooses to have more children with his wife, then his support for all his children should be equal. never should the children of his marriage have to suffer financially because they came second or third or even first. A child born of an affair should not take precedence over the mans other children, such as they do, here on this board every day because these women decided to keep there marriages intact. Many women here have children who the courts never even considered when figuring cs. It was a certain standard right off the top %. We have one now who is sinking fast because of it. They are doing without the basics because of their cs order. This one child born of an affair is getting more per month than the rest of her children combined. It is absurd.

There are a few states left that can and will consider all the income of the household when figuring support. Kentucky being one of those states. You marry a divorced man, you risk having your income included. Community Property.

There are still states that do not even look at the cp income, only the ncp income is factored in.

I live in Indiana and they factor in all the children, even ones born later. My daughter with my dh is factored in as far as his cs obligation towards his first child, as she should be. No one can tell us that because she was born later, she is less important. She is equal to her sister in every sense of the word, including financially. That is all these ladies here want. Equality for there children and to be able to pay there bills to. No one should have to lose there house because they are paying over $1000.00 per month in cs. Where is the cp parents financial resposibility in that? Especially a cp to an oc.

These are reasons there are people fighting to change these laws. With more than 50% of first marriages ending in divorce, the laws are way outdated and there are a mojority of children suffering because of it. Mostly children of second marriages which is where I keep my nose plowed in at.

I am glad to see someone come out of this mess slightly financially unscathed. Just keep a close eye on the courts. They have given her the right to come after more money anytime he makes more, and every couple of years just because. We have someone getting ready to go through a big cs raise. Ill. decided to send ow a nice letter to sign for them to go after more money. They will be paying nearly $1000.00 per month and will have to uproot their children once again because of it. It really is an unfair system.

I never knew how unfair until I found this board.

<small>[ December 06, 2002, 05:35 AM: Message edited by: mshermi ]</small>

Hi Stacia,

I first heard about it on the news. The I went to Deltabravo.net

They are a NCP rights group. A bit rough but they know thier stuff. It can be a very helpful sight. Just ask them anything and they will answer.

Hope that helps you.

Stacia, happy reading.

Gallaher v. Elam, No. E2000-02719-COA-R3-CV (Tenn.App. 01/29/2002)

[1] IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE July 11, 2001 Session


[2] No. E2000-02719-COA-R3-CV


[3] 2002.TN.0000129


[4] January 29, 2002


[5] DEE ANN CURTIS GALLAHER
v.
CURTIS J. ELAM


[6] Appeal from the Juvenile Court for Knox County No. B-3443 Carey Garrett, Judge


[7] Wayne Decatur Wykoff, Knoxville, Tennessee, for the Appellant, Dee Ann Curtis Gallaher. L. Caesar Stair, III, Knoxville, Tennessee, for the Appellee, Curtis J. Elam. Paul G. Summers, Attorney General & Reporter, and Stuart F. Wilson-Patton, Senior Counsel, Office of the Attorney General, Nashville, Tennessee, for the Intervening Petitioner, State of Tennessee.


[8] The opinion of the court was delivered by: Houston M. Goddard, Presiding Judge


[9] This is an appeal by the State of Tennessee from a determination of the Juvenile Court of Knox County which held Tenn. Comp. R & Regs. 1240-2-4-.03(4), issued pursuant to T.C.A. 36-5-101, unconstitutional as violative of Section 1 of the 14th Amendment to the Constitution of the United States. Dee Ann Curtis Gallaher also appeals, contending that the Trial Court was in error in setting child support. We affirm the Trial Court in its finding the Regulation in question unconstitutional and vacate the judgment as to child support.


[10] Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part; Vacated in Part; and Remanded


[11] Houston M. Goddard, P.J., delivered the opinion of the court, in which D. Michael Swiney, J., joined. Herschel P. Franks, J., filed a dissenting opinion.


[12] OPINION


[13] The principal issue raised in this appeal is whether the following rule and regulation promulgated by the Department of Human Services, pursuant to T.C.A. 36-5-101, violates the Equal Protection Provision contained in Section 1 of Amendment 14 to the United States Constitution:


[14] Children of the obligor who are not included in a decree of child support shall not be considered for the purposes of reducing the obligor's net income or in calculating the guideline amount. Tenn. Comp. R & Regs. 1240-2-4-.03(4).


[15] Because the facts are undisputed and only a question of law is presented for our review of the Trial Court's finding the foregoing rule and regulation unconstitutional is de novo without a presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996).


[16] Jacob Dylan Gallaher was born to Dee Ann Curtis Gallaher on August 25, 1993. Blood test results show a 99.76 percent probability that Curtis J. Elam was the father of Jacob. An agreed order was entered on September 27, 1994, declaring him to be such and establishing child support at $750 per month.


[17] At the time of conception of Jacob, Dr. Elam was married and the father of three children. At a hearing before the Referee in which Ms. Gallaher was seeking additional child support, the Referee increased the child support to $2100 per month, and ordered Dr. Elam to pay $200 per month as additional support because the father exercised no visitation privileges.


[18] Dr. Elam appeals the Referee's decision to the Juvenile Court. The Juvenile Judge entered an order holding the guidelines in general violated the Doctrine of Separation of Powers and the specific guideline in question violated the Due Process and Equal Protection Clauses of the State and Federal Constitutions. He thereupon awarded child support in the amount of $1600, the amount Ms. Gallaher testified was necessary for Jacob's support, plus an additional $200 because the father did not exercise his visitation rights. Nash v. Mulle, 846 S.W.2d 803 (Tenn. 1993). Finally, he ordered $15,000 to be placed in a trust fund by Dr. Elam for the benefit of Jacob.


[19] Both Ms. Gallaher and the State of Tennessee appeal the Trial Court's decision but only the State addresses the constitutional issue.


[20] The State points out that there is a strong presumption that legislative acts and those which include, under the holding of our courts, rules and regulations promulgated by various departments of government are constitutional, and that every doubt should be resolved in favor thereof. It also cites cases which hold that the Equal Protection Clause guarantees all persons similarly situated will be treated alike, that in this case we should not indulge in a strict scrutiny, but rather a "reduced scrutiny or rational basis test," and that statutory classifications will be upheld if "some reasonable basis can be found for the classification...or any state of facts may reasonably be conceived to justify it." Riggs v. Burson, 941 S.W.2d 44 (Tenn.1997).


[21] We agree with the foregoing statement of law.


[22] We have found no Tennessee case which addresses the specific issue raised, but in one case, State ex rel. v. Poteet, an unreported opinion of this Court filed in Nashville on March 17, 1999, where the facts were the reverse in that the putative father of a child born out of wedlock was ordered to pay child support without considering the fact that he had three additional children by a subsequent marriage.


[23] This Court affirmed the action of the Trial Court in awarding the first-born child 21 percent under the guidelines and did not consider the other three children subsequently born. In that case no constitutional issue was raised, but in a concurring opinion Judge Koch strongly suggests that had it been raised the regulation in question could very well have been held unconstitutional.


[24] The language Judge Koch used is instructive:


[25] There has been surprising little judicial consideration of the constitutional legitimacy of the "first families first" bias inherent in child support guidelines like the ones currently in effect in Tennessee. Only one court, in a very cursory fashion, has held that the guidelines can withstand rational basis equal protection scrutiny. See Feltman v. Feltman, 434 N.W.2d 590, 592 (S.D. 1989). However, this holding prompted a dissenting justice to observe that the classification between children of a former marriage and children of a current marriage is "unconstitutional because it discriminates against children of a `non-custodial' parent's second family, denying them equal protection under the law. This statute classifies children by accident of their birth, a classification that has no rational relationship to any legitimate governmental interest." Feltman v. Feltman, 434 N.W.2d at 593-94 (Henderson. J., dissenting). Others have raised similar concerns, not only about the reasonableness of the "first families first" bias but also about its effects on other fundamental rights and interests of the non-custodial parent and his or her spouse. See Rebecca B. Garland, Second Children Second Best? Equal Protection for Successive Families Under State Child Support Guidelines. 18 Hastings Const. L.Q. 881 (1991).


[26] This issue involves a child's right to receive support from a common biological parent. All children of the same parent have the right to share fairly with their siblings in their common parent's resources. When other states have adopted child support guidelines that accommodate this right, the Department cannot place administrative convenience ahead of fundamental fairness. The Department cannot simply shrug its bureaucratic shoulders and announce that it has done the best it can.


[27] Tennessee's child support guidelines contain the standards by which they should be measured. Their stated purpose is "to make child support awards more equitable by ensuring more consistent treatment of persons in similar circumstances." Tenn. Comp. R. & Regs. r. 1240-2-4-.02(2)(b). It should be apparent that the circumstances of children with a common biological parent are similar. Accordingly, when this issue is properly raised in a future case, the courts should put the guidelines' "first families first" bias to the test and should carefully consider whether it passes muster under the state and federal constitutions.


[28] As already noted, the Juvenile Judge found that the provision violated the Equal Protection Clause of the United States Constitution, as well as the Due Process Clause and the Doctrine of Separation of Powers provision of the Tennessee Constitution, which results in this appeal, wherein the constitutional issues are addressed by the office of the Attorney General of this State.


[29] The Juvenile Court, in ruling on the Equal Protection feature of this appeal, relied upon two dissenting opinions. One from the State of South Dakota, and the other from the State of Florida. In both of those cases, the majority found that the applicable statute should be viewed in the light of rational standard basis, rather than a suspect classification or a fundamental right. In both cases it was the last-born child who was given short shrift.


[30] In Feltman v. Feltman, 434 N.W.2d 590, 593 (S.D. 1989), Justice Henderson dissented from the majority opinion upholding the South Dakota Statute, and used the following language:


[31] Are children of a second marriage "children of a lesser god"?


[32] Are children of a second marriage lesser children under the United States Constitution?


[33] Are children of a second marriage any less hungry or naked without the support of their father?


[34] Should we weep for children of a second marriage at their birth, rather than at their death?


[35] This decision is reduced to an old adage, "First come, first served." In my judgment, all of God's children, born of the first or second marriage, must be afforded the same consideration under law.


[36] We have, before us, yet another case where the "guidelines chart" is literally supreme. It is further noted, by this minority writer, that the majority suggests, perhaps inferentially, that the priority of the child support for the first marriage results in "imperfect results." Indeed, the law is not, perfect, but as we write it, we should strive for its perfection.


[37] SDCL 25-7-7 is unconstitutional because it discriminates against children of a "non-custodial" parent's second family, denying them equal protection under the law. This statute classifies children by accident of time of birth; a classification that has no rational relationship to any legitimate governmental interest. Conceptually, this discrimination is as irrational, and hence unconstitutional, as discrimination against illegitimate children.


[38] In Pohlmann v. Pohlmann, 703 So.2d 1121, 1128 (Fla.App. 5 Dist. 1997) Justice Harris also dissented from the majority opinion upholding the Florida Statute in an equally vigorous manner:


[39] The dissent in Feltman asks the question: "Are the children of a second marriage children of a lesser god"? It also asks whether such children are lesser under the United States Constitution; are they less hungry or less naked without their parent's support" It finally asks whether we should weep for the children of a second marriage when they are born instead of when they die? The dissent in Feltman's response to these questions is that all children of the parent should be considered equal. The dissent asserts, as do I, that the mere fact that discrimination is in the guidelines or in the statute does not make it right, nor does it make it constitutional. Nor does the fact that it is designed by some committee make it so. (Emphasis in original.)


[40] Even though it is a discomforting topic, perhaps we should consider the fairness issue. Suppose it were the mother who was required to pay support to the children of her first marriage. And assume that upon remarriage she elects to have additional children. By doing so, she has voluntarily become unemployed rendering further child support problematic. Assume further that she elects to become a stay-at-home mother to raise her new children. The court would not, could not, and should not intervene. And there is a good reason. The children of the first marriage simply have no more veto power over the non-custodial parent's future reproductive decisions than a child of an intact marriage has over his parents' decision to have additional children. And such children of the first marriage, at least in my view, have no vested right to a higher standard of living based on an allocation of a greater percentage of their parent's income than do the children of a second marriage.


[41] Because the state has no business discriminating between children based solely on the fact of a divorce, there is no legitimate state purposes in requiring a parent to allocate his or her income more to one child than another. The state's attempt to do so is state-mandated, court-enforced child abuse; it is not only cruel discrimination, it is unconstitutional.


[42] We find the dissenting opinions more persuasive than the persuasive authority of the majority opinions, and adopt the reasoning thereof in the disposition of this appeal.


[43] As heretofore noted, the Trial Court also found the regulation in question violates the constitutional provision as to Due Process and the Doctrine of Separation of Powers. However, in light of the disposition of the Equal Protection issue, we do not deem it necessary to make a judgment as to the other grounds relied upon by the Juvenile Judge.


[44] Having determined that the rule and regulation hereinbefore set out is constitutionally infirm, we recognize that an appeal has been filed by the mother of the child in question taking exception to the amount of support decreed by the Juvenile Judge.


[45] It appears that Dr. Elam's income for the year 1999, the last year figures were available prior to the judgment below, is somewhat of an aberration, in that the proof shows the doctor had considerably more income in the two preceding years. We believe it is appropriate to remand the case for the Juvenile Judge to hear additional proof as to Dr. Elam's net income as defined by the guidelines and then make the following awards: (1) award for child support; (2) award for any arrearage which may be found; (3) if he finds it appropriate, require an additional payment for the fact that the child's custody is exclusively with the mother, and (4) if he finds it appropriate, establish a trust fund for educational purposes.


[46] As to how the child support award should be calculated, it appears there are perhaps two methods. Number one is to determine an award under the guidelines for four children and make an award of one-fourth of that amount to Jacob. *fn1 The other method would be to determine the appropriate amount under the guidelines for three children, deduct that amount from Dr. Elam's net monthly income, and make an award to Jacob applying the guideline percent for one child.


[47] In view of the fact that the first-born three children are living in one household rather than separate households, where household expenses would in large measure be the same for one child as for three, it would appear the latter method would be preferable under the facts of this case.


[48] For the foregoing reasons the judgment of the Juvenile Court is affirmed in part, vacated in part, and the cause remanded for proceedings not inconsistent with this opinion. Costs of appeal are adjudged one-half against the State and one-half against Dr. Elam.


[49] DISSENTING OPINION


[50] Tennessee Comp. R. & Regs. 1240-2-4-.03(4), promulgated by the Department of Human Services pursuant to Tenn. Code Ann. §36-5-101 reads:


[51] Children of the obligor who are not included in a decree of child support shall not be considered for the purposes of reducing the obligor's net income or in calculating the guideline amount. In addition, these children should not be considered by the court as a reason for deviation unless they meet the requirements of Rule 1240-2-4-.04(4).


[52] This Rule was found to be unconstitutional by the majority on the grounds that the quoted provision "discriminates" against other children of obligor, and in this case residing in the household of the obligor.


[53] I dissent from the majority's holding for several reasons. First, courts are admonished not to decide constitutional questions unless it is "absolutely necessary". Strait v. Burdin, 924 S.W.2d 82 (Tenn. 1996).


[54] The majority recognizes that the constitutional issue would not call for a strict scrutiny analysis, but rather that the "reduced scrutiny or rational basis test" is applicable. See Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997).


[55] This record presents no factual basis for either the Trial Court or this Court to reach the constitutional issue raised. One of appellee's arguments is that the guidelines treat children differently who are subject to a support order, as opposed to those who are not, because the child who gets a support award gets a definite percentage of the obligor's income and there is no showing that the others will get an equal amount. Appellee, however, has provided no evidence that this was actually the case. The father has earned an average of approximately $300,000.00 per year for the past five years, which puts him in the top 1% of income of all income tax filers. *fn2 The three children living with the father enjoy a very high standard of living, including private schools at the cost of $3,000.00 per month, reside in a home with a monthly mortgage payment of $3,800.00, and have access to expensive motor vehicles, thereby enjoying an unreasonably high standard of living, while the biological child which is subject to the guidelines must exist on a small fraction of such benefits. The facts of this case demonstrate that this child, if anything, gets unequal treatment, vis a vis the marital children. Yet the majority addresses the constitutional issue and holds the above-mentioned regulation unconstitutional, without citing any case authority for its position, but misguidedly relies on two maudlin dissents from other jurisdictions for its decision.


[56] It is the duty of this Court and all courts to uphold a statute if the statute is not purely arbitrary. Epstein v. State, 366 S.W.2d 914 (Tenn. 1963).


[57] The guidelines state they were enacted to comply with federal and state requirements, and that some of the goals behind the enactment of the same were to "decrease the number of impoverished children living in single parent families", to "make child support awards more equitable by ensuring more consistent treatment" of similarly situated individuals, to provide guidelines to parties and the courts and to improve the efficiency of the court process, and to "ensure that when parents live separately, the economic impact on the child(ren) is minimized and to the extent that either parent enjoys a higher standard of living, the child(ren) share(s) in that higher standard." Tenn. Comp. R. & Regs. 1240-2-4-.02. The guidelines also provide that they are to be applied as a rebuttable presumption, and that if the court finds sufficient evidence to rebut the presumption, it can make a different award so long as the court makes specific findings regarding why the guideline amount is inappropriate, and so long as the court consider the best interests of the child. Tenn. Comp. R. & Regs. 1240-2-4-.02(7).


[58] The dissenting opinions that the majority relies upon assert that the guidelines are unwise and are inequitable. However, our Supreme Court has stated that it is not authorized to strike down a statute that the court may consider unwise or inequitable, but the statute must create a real deprivation of constitutional rights. Baldwin v. Knight, 569 S.W.2d 450 (Tenn. 1978).


[59] These guidelines provide a multitude of valid reasons for their existence, including equity and predictability of child support awards and, more importantly, to ensure children are not adversely impacted because their parents do not live together. The guidelines ensure that children who do not live with the parent who makes substantial sums of money, will get the benefit of the parent's higher income, just as if they lived in the parent's household. While it is true that this child's mother can pay for basic necessities on her income of $36,000.00 per year, it certainly does not provide a standard of living anywhere near that of the father's three other children, who enjoy the benefits of an income of ten times that amount or more in some years than this child's mother earns.


[60] The application of the guidelines in this case is fair, and does not treat this child any better than the other children. In fact, if it were not for the guidelines, this child would certainly be treated much worse than the other children, as has been aptly demonstrated by the father's vehement resistance to paying child support in this case. *fn3 Even with the guideline support, this child will likely not have all of the material things enjoyed by the other children. Thus, there is no disparate treatment. Given the circumstances of the case, there can be deviations from the guidelines, since they are just a rebuttable presumption. In this case if the father could show that the child support in accordance with the guidelines would cause a negative impact on his other children and create economic hardship, then the court has the authority to order a downward deviation. The guidelines expressly provide for this in Tenn. Comp. R. & Regs. 1240-2-4-.04(4), and state that the court may consider such an action as necessary to "achieve equity between the parties". With this "escape valve" provision in place, there can be little argument that the guidelines create disparate treatment, since the court has the authority to consider hardships which would affect the other children. *fn4


[61] I would uphold the guidelines as constitutional and resolve every doubt in favor of constitutionality. Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997); In re Adoption of M.J.S., 44 S.W.3d 41 (Tenn. Ct. App. 2000). Also, as this Court has previously recognized, the guidelines have been before our Supreme Court on many occasions and no concern has been expressed regarding their constitutionality. See State ex rel. Armstrong v. Coleman, 2001 WL 557991 (Tenn. Ct. App. May 24, 2001), citing State, ex rel. Coleman v. Clay, 805 S.W.2d 752 (Tenn.1991); Nash v. Mulle, 846 S.W.2d 803 (Tenn.1993); Jones v. Jones, 930 S.W.2d 541 (Tenn.1996); Brooks v. Brooks, 992 S.W.2d 403 (Tenn.1999).


[62] I would reverse the Judgment of the Trial Court and enter Judgment in accordance with the guidelines.


[63] Herschel Pickens Franks, J.



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Opinion Footnotes

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[64] *fn1 This was the method employed by this Court in the case of Adams v. Reed, 874 S.W.2d 61 (Tenn. Ct. App. 1993), which was decided prior to the promulgation of the regulation here under siege.


[65] *fn2 Source: IRS data supplied to Congress; 1999 adjusted gross income of $293,000.00 up, puts taxpayer in the top 1% of income of all filers.


[66] *fn3 Some individuals only learn through experience the reality of the ancient Appalachian folklore, that if you dance you have to pay the fiddler.


[67] *fn4 The restriction in the guidelines as to children not in the decree goes to establishing the guideline percentage and not whether their support would create a hardship on the obligor.



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I just got into work, my hard drive may have decided to commit suicide on me last night - I will post more when I have time - but didn't want anyone to think that I was a post and run kinda person. I WILL answer the questions asked, too!

Mshermi

Your poor little fingers must be all cramped up this morning. What a wealth of information you have provided to us.

From the bottom of my heart...

Catnip =^^=

It's interesting that people who say things like "stay close to God", are the very ones who are the most hateful and bitter; no more or less than the OW's they speak about on GB.
The BS's here who exhibit the most hate in my opinion are also the ones who have the worst OW's on the face of the planet, as they are described in your posts. Could there be a correlation?
If any of you nasty BS's were my ex-lovers' wife, I might be prone to dishing back some of your nastiness if it were as overt as it is displayed here. Could it be that the reason that the women in this man's life or former life, can't stay in their respective corners is because they simply want to get in the ring and win?

CM

Catnip,

I hope it helps someone.

My fingers are fine. I do temporary office work around town, I am doing some entry today. I love it.

I will look for more case laws tonight, I know there are some more out there.

Melissa

CM - are you saying they (certain BW's) spend too much time focusing on the OW and not on dealing with their H and the issue with their M?

</font><blockquote><font size="1" face="Verdana, Arial">quote:</font><hr /><font size="2" face="Verdana, Arial">Originally posted by findingmywayback:
<strong>CM - are you saying they (certain BW's) spend too much time focusing on the OW and not on dealing with their H and the issue with their M?</strong></font><hr /></blockquote><font size="2" face="Verdana, Arial">FMWB,

Yes, just the same way many OW's are focusing on their ex-MM's and not on their husbands, children, moving on, etc. Revenge is tempting for anyone who has been hurt. BS's have been hurt by their spouses just the same as OP's have been hurt by their married / OP partner. When you mix the two angry, hurt women/men, whooo hooo, watch out.
I like how you put it into simple terms. It is exactly what I think is going on.

CM

</font><blockquote><font size="1" face="Verdana, Arial">quote:</font><hr /><font size="2" face="Verdana, Arial">Originally posted by CMiranda:
<strong>It's interesting that people who say things like "stay close to God", are the very ones who are the most hateful and bitter; no more or less than the OW's they speak about on GB.

=^^= You're right, CM. I am a Bitter Betrayed...with good reason. And, I know you would be too if the tables were turned because you are so combative and competitive, as I can be. And that is not such a bad thing. The strong survive and can change their lives. I am prepping for something that will be tough on me and I want to get my edge and if it means to sound bitter...Okey-doke. But, it's OK...not a big deal. I'm not "bitter" 24/7, only when something has tweaked me or if I am suffering because of someone else's actions. As for the other board, none of us carry on with such venom and bitterness and vitriol like they do on the other site. They get the prize for being the most ugly in their delivery. I couldn't resist...I took a peek this morning and read the posts and was stunned at the language, hilarious perceptions they have of us without really knowing anything, just throwing something out there trying to get personal when they know nothing about any of us. They slash away in their anger at shadows because what else can they do? At least we are "general" in our assessments, speaking from our own personal experience or go by what they have written themselves. They sling around some pretty hilarious stuff and instead of taking it as an insult, it just shows the world what THEY are like. Class will tell.

The BS's here who exhibit the most hate in my opinion are also the ones who have the worst OW's on the face of the planet, as they are described in your posts. Could there be a correlation?

=^^= Absolutely! It is "cause and effect". OW marches into my life uninvited and refuses to have the compassion to back off when informed early on what the story is, tells me to go to hell and that I am just jealous and proceeds to intentionally get herself knocked up and expects me to pay for it for the rest of MY life, causing me enormous life altering changes and heartache. And she doesn't care. The effect is "bitterness" that comes and goes depending on whether she is having her attorney send letters to the courts demanding my husband be put in jail or have his license revoked or slapping me with a phony RO by lying to the courts that I want to take her spawn away from her (as if) and that I threatened her with a gun because she knows I go to the range and bark off a few. It comes down to what came first, the chicken or the egg, doesn't it? I did nothing to her. Didn't even know she existed until she pushed her plus sized fat butt into my life.

If any of you nasty BS's were my ex-lovers' wife, I might be prone to dishing back some of your nastiness if it were as overt as it is displayed here.

=^^= If you were my husband's ex-lover, that means you went where you had no business going and you were the one who started this whole thing and you were the one instigating this drama so if I dished something out, it would be in retaliation to your initial behavior, CM...for God's sake, Girl...THINK!!!!!!!!!!!! USE YOUR HEAD! COMMON SENSE, FOR A CHANGE! What the hell do you expect???

Could it be that the reason that the women in this man's life or former life, can't stay in their respective corners is because they simply want to get in the ring and win?

=^^= Absolutely! I want to win a fair and reasonable support amount and have the arrears adjusted accordingly on Monday. I will have no argument with Plus-sized Fat A$$ Troll if this can happen...I will instantly become UN-bitter because then there will be fair play and I will be less uncomfortable because I will be able to keep my hosue and have a place to live.

CM</strong></font><hr /></blockquote><font size="2" face="Verdana, Arial">It is so simple...why does this elude you so?

Catnip =^^=

Michelle,
I was wondering if you can give me some information. I live in WI and the law states that the children born first are considered in CS. I have talked to some lawyers here and some say our kids may or may not be considered because there is no child support order for them. And some say that the judge has to consider them. We don't pay CS yet and just wondering if there is anything I can do now to ensure that they will be consider?

And if the courts do have to consider our 3 kids they are older then OC?

Dawn

</font><blockquote><font size="1" face="Verdana, Arial">quote:</font><hr /><font size="2" face="Verdana, Arial">Originally posted by zebrababy:
<strong>Joshmom,

Ok, just a few questions:

How is it that $34,000 isn't enough to raise a child. With that kind of money her child could go to day care, she could buy medical insurance and still have a HUGE chunk left over to invest for college. I have full time employees that make less than that per year. How does a full year's salary equate to child support?

where are you getting that figure? Shoot, when I had Josh I was making less than that a year, and I survived. It was tough, and I lived with family, friends and then in one room with him, but I did what I had to do. I agree that that is a lot. I know where I live they have both parties fill out financial forms, and they base it on BOTH - not just what the father makes. And they don't include daycare, or at least they didn't when I went to court.

Second question, how can she "afford" to get her floors refinished when she has all those credit cards of back daycare and medical bills. I sit and think about Twiisty pissing and pooping outside in an outhouse because she can't afford to fix her toilets in the house ... but they sure do pay their CS on time and I start to fume about a woman moaning over $34,000/year not being enough. Oh, that would be $34,000 TAX FREE = $2,800 / month, free and clear. Jeeez, I don't net that much after all my deductions, elected and otherwise.
Neither do I. I don't know who paid to have the floors refinished. Maybe she did, maybe her parents did it for her, maybe she had a friend do it at a reduced rate, who knows. Maybe the floors were in such bad shape that she HAD to do something before she could let the baby crawl around on them. I don't know, and I'm not going to pretend I do. I feel horrible about Twisty's situation, and think that her case is an example of someone taking the system for all they can get, and being out to screw xMM. Nobody should have to live like that. EVER.

I hope you don't say ... it's the principle of the matter ... the judge ordered it so he should pay it. Bottom line is, even if the judge ordered it, it's toooooooo much. You have to at least admit that.
I don't know xMM's financial situation. If he's a multi-millionare, would it still be too much? You see these celebrities that get that much per MONTH in CS. I think THAT is ridiculous. Yes, I think that it's a lot.

I also hope you don't say that the OC should be raised in the same "lifestyle" as his other children (children of the marriage). In my opinion every child is deserving of a home, food, health care, an education and a safe living environment. Every (both) parent is responsible to deliver those basic necessities. Anything beyond that should not be demanded by any court of law.
I completely agree with that. For example, if I decide that my child should go to a private school - I would pay for it. Not expect xMM to. I don't expect xMM to pay for his extracurricular activities. I do that. What I get goes towards the $105/week I pay for a babysitter, and the rest towards basic living necessities. I don't expect xMM to support me 100% so I can stay home with him, I DO expect him to pay support though. And he does. THAT is his portion of the responsibility, MINE is taking care of my son, and making sure that he is a well rounded kid. Which he is.

I'm glad you popped by so I could ask these questions. I didn't dare post them on your board for fear of "starting something." Good to see you again. <img border="0" title="" alt="[Wink]" src="images/icons/wink.gif" /> <img border="0" title="" alt="[Big Grin]" src="images/icons/grin.gif" />

Any time. Favor - could you pop me an email, I have a question to ask you. joshmom1965@yahoo.com. Thanks. JM

Thanx,
Z.</strong></font><hr /></blockquote><font size="2" face="Verdana, Arial">

Thank you Melissa!

I mentioned to H that you had tons of contact points and that you had mentioned something about a case in TN...
This is the first time he has been ok with me checking this site a lot.. LOL

I will be sure to check into that site you gave.

Thanks again... Bunches and Bunches <img border="0" title="" alt="[Big Grin]" src="images/icons/grin.gif" />