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Mom’s Claim for Past-Due Child Support Requires Evidentiary Hearing

Tennessee child support collection case summary.

Susan M. Austin v. Tommy Joe Richmond

Fayette County Courthouse

The child in this Fayette County, Tennessee, case was born in 1999.  In 2010, the mother was named primary residential parent.  The child’s private school expenses were to be borne by the mother, with the father paying $353 per month child support, plus an additional $100 per month toward an arrearage of about $10,000.  Payments were to be made through the Texas Attorney General’s office.

In 2017, the mother filed a petition for contempt, alleging that the child support had not been paid as ordered.  She conceded that there had been some payments made directly to her, but not through the Texas Attorney General.  She denied that these payments constituted child support.  Discovery took place, and the father sent a letter to the court detailing the payments.  He included check numbers and bank statements.  In 2021, the court appointed a CPA to conduct an accounting and return a report to the court.  The court, however, made an order in 2022, without benefit of the CPA report.  Instead, it relied upon the information provided in the  “voluminous pleadings and exhibits.”

Ultimately, the trial court concluded that the father had overpaid his child support, and awarded him a judgment for over $27,000, plus almost $16,000 in attorney’s fees.  The mother then appealed to the Tennessee Court of Appeals.

The mother argued that the trial court had erred in entering judgment without conducting an evidentiary hearing.  The Court of Appeals agreed.  it first pointed out that allegations in the pleadings are not evidence, and facts, unless stipulated, must be proved through documents, affidavits, oral testimony, or other competent evidence.  Furthermore, witnesses are required to take an oath prior to testifying, and findings of fact must come from the evidence.

In this case, there was no sworn testimony or cross examination.  No facts were stipulated to.  The vast majority of the discovery responses relied upon by the court were not sworn.  And neither party was even aware that the court planned to forego a formal hearing.  For these reasons, the appeals court held that the judgment could not stand.

The father did argue that the error was harmless, because the trial court should have earlier dismissed the mother’s case for failure to prosecute.  The appeals court noted that there were many delays in the case which were frustrating to the trial court.  But this could not “serve as an excuse for short-circuiting the most basic principles of our jurisprudence.”  The court also noted in a footnote that it was unclear whether the delays were the direct result of the mother’s actions.

For these reasons, the Court of Appeals vacated the judgment and remanded the case.

No. W2022-00559-COA-R3-JV (Tenn. Ct. App. Aug. 31, 2023)

See original opinion for exact language.  Legal citations omitted.

To learn more, see Child Support Collection & Enforcement in Tennessee.

See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring actual examples of parenting plans and child support worksheets from real cases available on