By Shirley Downing
downing@gomemphis.com
August 10, 2002

The Tennessee Court of Appeals in Jackson on Friday declared
unconstitutional the guidelines judges use to determine child support
payments.

Though the impact was unclear because the state has 60 days to
appeal, family law attorneys said it could result in lowered payments
to many children.

The appeals court decision stems from a Shelby County case in which a
Memphis father had argued the expense of raising two children in his
current marriage should be considered in figuring how much he should
pay to support a third child from a previous relationship.

The guidelines prohibit consideration of any children other than
those covered by court-ordered child support.

The father, Troy Thompson, lost his argument that the rule is
unconstitutional and appealed.

The appellate court, in an opinion written by Judge Holly Lillard,
reversed the juvenile court judge, finding the child support
guidelines "violate the equal protection guarantees of the federal
and state constitutions."

"We . . . find no rational basis for flatly prohibiting the trial
court from considering a parent's support of other children," Lillard
wrote.

"This is fantastic news,'' said Gail Sevier, one of two attorneys who
filed Thompson's appeal. "The court paved the way for a more
equitable distribution of support dollars among all children of any
payor."

Thompson could not be reached for comment.

The state had not decided Friday whether to appeal the decision to
the state Supreme Court.

Tennessee Department of Human Services spokesman Paul Ladd said it is
too early to know what impact the decision would have on child
support collections in this state.

"We have 393,000 active child support cases in Tennessee," Ladd
said. "For fiscal year 2001 we took in $375 million in child
support . . ."

But other attorneys said the ruling could have significant impact,
with Juvenile Court spokesman Dan Michael predicting a possible flood
of new work for the court system.

"This opinion could create several new issues that will have to be
resolved before the guidelines settle down," said Michael, counsel to
Juvenile Court Judge Kenneth Turner.

Webb Brewer, litigation director for Memphis Area Legal Services,
said the court ruling was "fair" and "proper" and could have
significant impact.

"My first reaction is that there was a real flaw in the statute and
that it was unconstitutional in that it seemed to treat children that
were subject to a child support order different from children that
weren't subject to an order," Brewer said.

The Shelby County case is similar to two others heard in East
Tennessee, one of which is now before the state Supreme Court.

Thompson's case involved a child he had with Elisa Connell Hulbert in
1993. When a 1996 blood test showed Thompson was the father, he
agreed to pay $375 a month in child support. In the meantime, he
married Andrea Thompson, and they had two children.

In 2000, Hulbert asked juvenile court to set child support for the
child. Using the guidelines, the court ordered a $300 increase.

Thompson argued that paying the additional money would result in "a
slow death . . . for my financial situation."

The juvenile court said Thompson failed to show the kind of hardship
that would allow a deviation from the guidelines.

The guidelines compute payments based on the paying parent's net
income, which is then multiplied by a percentage based on the number
of children subject to the child support order.

One child would get 21 percent of the parent's income; two children,
32 percent; three, 41 percent; four, 46 percent; and five or more, 50
percent.

In his appeal, Thompson argued that "the guidelines treated his later
born children less favorably than his first child and, therefore,
violated his children's constitutional rights to equal protection."

At Juvenile Court, Michael said the ruling leaves the door open for
many requests for adjustments because it did not state whether
payments should be adjusted retroactively.

"We could have a flood of parents coming in saying that you set my
child support two years ago and I want you to recalculate it," he
said.

The question then becomes how to recalculate support.

"Consider if you have a single mom who has given birth to a child out
of wedlock to a man who is married with three children. He possibly
has the benefit of his wife's support for those three children,"
Michael said.

"Under the current guidelines, the court cannot consider household
income but just his. So now, if the single mom's support is reduced,
he is actually gaining the benefit. I wonder how single moms (with
much smaller support payments) will react?"