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things I wonder about...
Here are some things I just don't seem to understand.
1. If it costs more to house someone in jail per year, than child support is in many of the cases of a parent who is not supporting their child, not even including the loss of tax revenue from that invividual, isn't it in the "best interest of the child" and the community as a whole for the darn government to pay the child support and leave the NCP alone? I mean, honestly, the child is not receiving "their" money and putting their NCP in jail is not going to help that situation anyway. 2. If it's a felony to not pay child support, then can my son, who cannot be supported by his father thanks to the idiots at the CSE office garnishing his wages in error and basing his child support on a 30K higher salary than they should've sue the state of Texas by not allowing his father to support him? 3. If a CP and child in Texas deserve 20% of NCP income and the NCP has another child living with him as well, why doesn't he deserve at least 20% of the NCP income? Why isn't the exact % of income subtracted from the NCPs earnings before child support is calculated? 4. In the case that the state of Texas wants CS to be paid by the estate upon death of the obligor or to make the NCP have an insurance policy to cover his child support in case of death, if this is in the best interest of the child, why doesn't the state and the same people advocate that the CP also have a insurance policy to support the child in case of their death? 5. In states where an NCP is forced to support an ADULT, why is it that if they are all about the best interest of a child, they don't base that support upon full deductions for any minor children living with the NCP or any other children of the NCP? Aren't children under 18 "entitled" to support? I would think a child under 18 is more entitled than an ADULT over 18. 6. In states where dental support is also required, how can dental support be a priority over the basic needs of food/shelter and even MEDICAL insurance of a child living with an NCP? 7. If the cost of raising a child would be taken from the estate of an obligor, can someone please tell me if the social security they would also be receiving would be for the CPs vacation or new car? I thougt that's what social security for minor children was...Seems the NCP who has a child living with him is only entitled to social security, but the one not living with him is entitled to support from a dead person as well as social security...How lovely. Everyday I battle these things. If all children are entitled to support (at outrageous amounts) from both their parents, why is it that it only applies to the NCP? Can someone please tell me if I should divorce my husband so that my child has the same rights as his half-sister? |
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things I wonder about...
On Mar 20, 10:47�am, "whatamess" wrote:
Here are some things I just don't seem to understand. 1. *If it costs more to house someone in jail per year, than child support is in many of the cases of a parent who is not supporting their child, not even including the loss of tax revenue from that invividual, isn't it in the "best interest of the child" and the community as a whole for the darn government to pay the child support and leave the NCP alone? *I mean, honestly, the child is not receiving "their" money and putting their NCP in jail is not going to help that situation anyway. 2. *If it's a felony to not pay child support, then can my son, who cannot be supported by his father thanks to the idiots at the CSE office garnishing his wages in error and basing his child support on a 30K higher salary than they should've sue the state of Texas by not allowing his father to support him? 3. *If a CP and child in Texas deserve 20% of NCP income and the NCP has another child living with him as well, why doesn't he deserve at least 20% of the NCP income? *Why isn't the exact % of income subtracted from the NCPs earnings before child support is calculated? 4. *In the case that the state of Texas wants CS to be paid by the estate upon death of the obligor or to make the NCP have an insurance policy to cover his child support in case of death, if this is in the best interest of the child, why doesn't the state and the same people advocate that the CP also have a insurance policy to support the child in case of their death? 5. *In states where an NCP is forced to support an ADULT, why is it that if they are all about the best interest of a child, they don't base that support upon full deductions for any minor children living with the NCP or any other children of the NCP? *Aren't children under 18 "entitled" to support? *I would think a child under 18 is more entitled than an ADULT over 18. 6. *In states where dental support is also required, how can dental support be a priority over the basic needs of food/shelter and even MEDICAL insurance of a child living with an NCP? 7. *If the cost of raising a child would be taken from the estate of an obligor, can someone please tell me if the social security they would also be receiving would be for the CPs vacation or new car? *I thougt that's what social security for minor children was...Seems the NCP who has a child living with him is only entitled to social security, but the one not living with him is entitled to support from a dead person as well as social security...How lovely. Everyday I battle these things. *If all children are entitled to support (at outrageous amounts) from both their parents, why is it that it only applies to the NCP? *Can someone please tell me if I should divorce my husband so that my child has the same rights as his half-sister? There is no such thing as equal protection under the law, that's why. |
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things I wonder about (Long)
"whatamess" wrote ........................... Everyday I battle these things. If all children are entitled to support (at outrageous amounts) from both their parents, why is it that it only applies to the NCP? Can someone please tell me if I should divorce my husband so that my child has the same rights as his half-sister? == Herein lies the judicial reasoning for/against the support of subsequent children. This case mentions other cases that you might wish to read. I have posted Pohlmann v Pohlmann here a few times over the years and it can be found via Google. It is a remarkable judicial tribute to our childrens' dilemma. There are mothers of subsequent children here on the newsgroup (including myself, but my steps are now grown) who understand exactly what you are dealing with. Cutting these children out is a profound injustice and hopefully the CS guidelines that fail to recognize this will be changed. 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. note1 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. note2 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. note3 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. note4 [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. -------------------------------------------------------------- Opinion Footnotes -------------------------------------------------------------- [64] Note 1 - 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] Note 2 - 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] Note 3 - Some individuals only learn through experience the reality of the ancient Appalachian folklore, that if you dance you have to pay the fiddler. [67] Note 4 - 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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things I wonder about (Long)
On Mar 20, 12:03�pm, "Gini" wrote:
"whatamess" wrote .......................... Everyday I battle these things. *If all children are entitled to support (at outrageous amounts) from both their parents, why is it that it only applies to the NCP? *Can someone please tell me if I should divorce my husband so that my child has the same rights as his half-sister? == Herein lies the judicial reasoning for/against the support of subsequent children. This case mentions other cases that you might wish to read. I have posted Pohlmann v Pohlmann here a few times over the years and it can be found via Google. It is a remarkable judicial tribute to our childrens' dilemma. There are mothers of subsequent children here on the newsgroup (including myself, but my steps are now grown) who understand exactly what you are dealing with. Cutting these children out is a profound injustice and hopefully the CS guidelines that fail to recognize this will be changed. * * * * * * 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. note1 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. note2 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. note3 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. note4 * * * * * * * * * [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. -------------------------------------------------------------- * * * * * * * * * * Opinion Footnotes -------------------------------------------------------------- * * * * * * * * * [64] * * Note 1 - 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] * * Note 2 - 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] * * Note 3 - Some individuals only learn through experience the reality of the ancient Appalachian folklore, that if you dance you have to pay the fiddler. * * * * * * * * * [67] * * Note 4 - 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. -------------------------------------------------------------------- good post |
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things I wonder about (Long)
When I read about "children of a parent" should all share equally
their parent's wealth, I agree to a certain extent. That extent is the fact that if they must all share equally in their parent's wealth, they also share the "ups and downs" of it...including, lower salaries. It seems that while my husband got laid off and I paid his child support, the state of Texas, nor the ex, nor the child from his previous marriage thought it was fair for this child to suffer the "lower income" of the father. However, it was fair under the law for OUR son to suffer the lower income of the father. With that said, I have no problem if she wants to share the "ups and downs"...but it's not fair one bit that it's my son and I who sacrificed when he lost his job...the ones who sacrificed putting him through some college courses to be able to get another job, which of course, turns into higher expenses for us as a family, less for OUR son to enjoy...yet once he gets the higher paying job, his daughter gets to reap the benefits of that. Our son didn't have a choice on whether his dad lost his job or not, whether he had more things or not or whether we sacrificed or not...yet his daughter is entitled to a higher standard of living now, and even with his decrease in income, she's still entitled to the higher standard of living from her father's income. With that said, it might be that indeed my son has a nice standard of living, probably close or maybe higher than his daughter because "I FULLY SUPPORT HIM"...This higher standard offered by me is not a "super high rich, extravagant life", no brand name clothes like his half-sister, no vacations every other month, like his half-sister, just a nicer home, in a better neighborhood, because that's where I choose to spend my money...If I were divorced from his dad, he would be doing really well...sad but true. Well, only 6 more years of this...geez...it was 6 more years 2 years ago...but yes, she failed school, so our countdown clock hasn't moved... |
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things I wonder about (Long)
whatamess wrote: When I read about "children of a parent" should all share equally their parent's wealth, I agree to a certain extent. That extent is the fact that if they must all share equally in their parent's wealth, they also share the "ups and downs" of it...including, lower salaries. It seems that while my husband got laid off and I paid his child support, the state of Texas, nor the ex, nor the child from his previous marriage thought it was fair for this child to suffer the "lower income" of the father. However, it was fair under the law for OUR son to suffer the lower income of the father. With that said, I have no problem if she wants to share the "ups and downs"...but it's not fair one bit that it's my son and I who sacrificed when he lost his job...the ones who sacrificed putting him through some college courses to be able to get another job, which of course, turns into higher expenses for us as a family, less for OUR son to enjoy...yet once he gets the higher paying job, his daughter gets to reap the benefits of that. Our son didn't have a choice on whether his dad lost his job or not, whether he had more things or not or whether we sacrificed or not...yet his daughter is entitled to a higher standard of living now, and even with his decrease in income, she's still entitled to the higher standard of living from her father's income. With that said, it might be that indeed my son has a nice standard of living, probably close or maybe higher than his daughter because "I FULLY SUPPORT HIM"...This higher standard offered by me is not a "super high rich, extravagant life", no brand name clothes like his half-sister, no vacations every other month, like his half-sister, just a nicer home, in a better neighborhood, because that's where I choose to spend my money...If I were divorced from his dad, he would be doing really well...sad but true. Run the numbers, and get "divorced" on paper if that's really advantageous. This is what this evil system drives people to. One of the reasons my GF and I will not get married is that we don't want my ex getting her claws on her money. - Ron ^*^ |
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things I wonder about...
whatamess wrote:
Here are some things I just don't seem to understand. 1. If it costs more to house someone in jail per year, than child support is in many of the cases of a parent who is not supporting their child, not even including the loss of tax revenue from that invividual, isn't it in the "best interest of the child" and the community as a whole for the darn government to pay the child support and leave the NCP alone? I mean, honestly, the child is not receiving "their" money and putting their NCP in jail is not going to help that situation anyway. I'm going to explain something, and this isn't just a NCP thing: we have a government that, for the last half century, has thought that the best approach to lower things that we don't like is to throw people in jail for longer and longer terms. Drugs, prostitution, things like that. We are a country of zero tolerance and even less common sense. And yes, you going to jail will not put bread on your kid's table, but it will put bread on the CO's table, not to mention votes for the politician who's "tough on crime" and "for the American family". |
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things I wonder about (Long)
"whatamess" wrote ...................... Well, only 6 more years of this...geez...it was 6 more years 2 years ago...but yes, she failed school, so our countdown clock hasn't moved... == Hopefully, this area of family law will change in the near future as it is one in which the majority of people should agree is unjust. OTOH, I can't believe it became this way at all because it blatently victimizes children solely on birth order. The real kicker for me was that the ex had a net income of 48k per year including the child support we paid while ours was less than half that--But, because government safety net programs (reduced school lunches, sliding scale daycare, etc) are based on gross income with no allowable deduction for child support paid, our kids with half the net income qualified for nothing, while their older half-siblings qualified for nearly everything. Our child support order was doubled, from $600. to 1200. *after* our 2 kids were born and the judge's attitude was as nauseating as our worthless attorney. Yes, there was a lot of anger on my part that a judge could so cavalierly disregard our childrens' needs. We survived intact but there are subsequent children all over this country teetering on the edge of abject poverty so half-siblings can dress in fancy frocks. One appellate judge called these younger half-siblings the "Cinderella Children." Fortunately, the years do go quickly. Are you sure the clock got reset because the child failed school? It doesn't always and varies by state. What state controls your order? |
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things I wonder about...
"John Meyer" wrote in message . .. whatamess wrote: Here are some things I just don't seem to understand. 1. If it costs more to house someone in jail per year, than child support is in many of the cases of a parent who is not supporting their child, not even including the loss of tax revenue from that invividual, isn't it in the "best interest of the child" and the community as a whole for the darn government to pay the child support and leave the NCP alone? I mean, honestly, the child is not receiving "their" money and putting their NCP in jail is not going to help that situation anyway. I'm going to explain something, and this isn't just a NCP thing: we have a government that, for the last half century, has thought that the best approach to lower things that we don't like is to throw people in jail for longer and longer terms. Drugs, prostitution, things like that. We are a country of zero tolerance and even less common sense. And yes, you going to jail will not put bread on your kid's table, but it will put bread on the CO's table, not to mention votes for the politician who's "tough on crime" and "for the American family". Kinda reminds me of the woman who took away the driver's license of her children's father because he could not afford to pay "child support". He was an unemployed truck driver (the only kind of job he ever knew) applying for a new truck driving job. Needless to say, he ended up in prison where it costs the taxpayers in excess of $60,000 a year to punish him for not paying approximately $6,000 a year. Makes sense to me............. |
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things I wonder about (Long)
"Gini" wrote in message news:wtULh.2289$zN.23@trndny03... "whatamess" wrote .......................... Everyday I battle these things. If all children are entitled to support (at outrageous amounts) from both their parents, why is it that it only applies to the NCP? Can someone please tell me if I should divorce my husband so that my child has the same rights as his half-sister? == Herein lies the judicial reasoning for/against the support of subsequent children. This case mentions other cases that you might wish to read. I have posted Pohlmann v Pohlmann here a few times over the years and it can be found via Google. It is a remarkable judicial tribute to our childrens' dilemma. There are mothers of subsequent children here on the newsgroup (including myself, but my steps are now grown) who understand exactly what you are dealing with. Cutting these children out is a profound injustice and hopefully the CS guidelines that fail to recognize this will be changed. Here's the GOOD news: You now have the opportunity to build an asset portfolio where your children will benefit as the rightful heirs. At least it's some kind of compensation for the injustice forced upon them by the court people during all those years. As for the grown children of the lazy "child support" woman. Oh well; they can go pack sand............ 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. note1 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. note2 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. note3 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. note4 [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. -------------------------------------------------------------- Opinion Footnotes -------------------------------------------------------------- [64] Note 1 - 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] Note 2 - 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] Note 3 - Some individuals only learn through experience the reality of the ancient Appalachian folklore, that if you dance you have to pay the fiddler. [67] Note 4 - 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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