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Alexander v. Alexander

Court of Appeals of Tennessee, Nashville

June 13, 2019

JULIE MARIE ALEXANDER
v.
SEAN STEPHEN ALEXANDER

          Session June 5, 2018

          Appeal from the Circuit Court for Sumner County No. 2010-CV-1377 Joe Thompson, Judge

         This post-divorce appeal concerns the court's denial of the mother's motion for relief from an order of the court calculating her child support arrearage. We reverse the court's denial of relief and hold the challenged judgment void. We remand for further hearing.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed; Case Remanded

          Julie Marie Alexander, Hendersonville, Tennessee, pro se.

          Joseph Y. Longmire, Jr., Hendersonville, Tennessee, for the appellee, Sean Stephen Alexander.

          John W. McClarty, J., delivered the opinion of the Court, in which Andy D. Bennett, and Richard H. Dinkins, JJ., joined.

          OPINION

          JOHN W. McCLARTY, JUDGE

         I. BACKGROUND

         Julie Marie Alexander ("Mother") and Sean Stephen Alexander ("Father") were married on March 19, 2005. Two children ("the Children") were born of the marriage. The Parties separated in August 2010 and then filed for an uncontested divorce on November 2, 2010, with an attached marital dissolution agreement ("MDA"). The MDA provided that neither party would remit child support "[d]ue to the income of each party and the number of overnights the [Children] spend with each party."

         The case proceeded to hearing on February 4, 2011, at which the trial court considered the MDA submitted by the parties that included a waiver of child support. The court adopted the MDA but entered a permanent parenting plan that tasked Mother with remitting child support in the amount of $773 per month. However, the supporting child support worksheet cited in the parenting plan and also adopted by the trial court provided for a downward deviation of support to $0 per month in light of Mother's agreement to "take responsibility for college education fund." Further, the worksheet provided a final child support obligation of $0 and included the following comment:

Child support will not be necessary. Neither party wishes to accept money from the other parent.

         Mother never remitted child support; however, she remitted some payment to a college savings account for the Children. On July 6, 2015, Mother filed a petition for modification of the permanent parenting plan referenced in the 2011 divorce decree. She sought increased co-parenting time and designation as the primary residential parent based upon an alleged material change in circumstances.

         Father responded by requesting dismissal of Mother's petition and filing a counter-petition of his own, requesting the court to hold Mother in contempt for her failure to remit child support pursuant to the terms of the permanent parenting plan. Father then filed a motion to dismiss Mother's petition, citing her failure to include a proposed parenting plan as required by Tennessee Code Annotated section 36-6-405. Mother then filed a proposed parenting plan that provided for her designation as the primary residential parent and awarded each party equal co-parenting time. The proposed plan included the following provision for retroactive child support:

A judgment is hereby awarded in the amount of $TBD to [Father] against the child support payor representing retroactive support required under [the income shares child support guidelines] dating from February 4, 2011[, ] which shall be paid (including pre/post judgment ...

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