FILED

October 17, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

WESTERN SECTION AT NASHVILLE

STATE OF TENNESSEE, ex rel, )

MARIE OSONG DAVIS, ) 

)

Plaintiff/Appellant, ) Davidson Circuit No. 94R-462

)

VS. ) Appeal No. 01A01-9702-CV-00090

)

DAVID MATIKKE, )

)

Defendant/Appellee. )

APPEAL FROM THE CIRCUIT COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE MURIEL ROBINSON, JUDGE

JOHN KNOX WALKUP

Attorney General & Reporter

KIMBERLY M. FRAYN

Assistant Attorney General

Nashville, Tennessee

Attorneys for Appellant

PAUL N. RUDOLPH

Nashville, Tennessee

Attorney for Appellee

REVERSED AND REMANDED

ALAN E. HIGHERS, J.

CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.
1Uniform Reciprocal Enforcement of Support Act. For Tennessee’s current version of the Act, see

T.C.A. §§ 36-5-201 to -229 (1996).

2

Plaintiff State of Tennessee, on behalf of Marie Osong Davis, appeals the trial

court’s order modifying the child support obligation of Defendant/Appellee David Matikke.

The trial court’s order of modification reduced Matikke’s child support obligation from $580

per month to $342.33 per month. For the reasons hereinafter stated, we reverse the trial

court’s modification order and reinstate the trial court’s previous order requiring Matikke to

pay child support in the amount of $580 per month.

The trial court’s original order resulted from a Maryland URESA1

 petition filed on

behalf of Davis in April 1994. The petitioner sought an adjudication that Matikke was the

father of Davis’s minor child, Megan Ekwopi Osong, born April 8, 1989, as well as an order

of child support. When subsequent genetic testing established a 99.32% probability of

paternity, the trial court entered an order adjudicating Matikke to be Megan’s father.

Thereafter, Matikke agreed to pay child support for Megan in the amount of $580 per

month. Per this agreement, in March 1996 the trial court entered an order requiring

Matikke to pay $580 per month retroactive to February 9, 1996. 

Five months later, in August 1996, Matikke filed a motion to reduce the amount of

child support previously established in the agreed order entered by the trial court. As

grounds therefor, Matikke alleged that he had filed a divorce action against his wife in July

1996; that Matikke and his wife had three minor children, all of whom were older than

Megan; that Matikke desired to provide for the support of Megan and the three minor

children of his marriage; and, finally, that a strict application of the Tennessee Child

Support Guidelines would work “a serious inequity and disadvantage for the three children”

of Matikke’s marriage. 

The trial court granted Matikke’s motion and entered an order modifying the

previous order of child support entered in March 1996. In support of its decision, the trial

court reasoned that:
3

4. The parties to the Divorce action [Matikke and his

wife] and their three minor children comprise the primary family

unit.

. . . .

6. The court heretofore [in the divorce action]

ordered [Matikke] to pay child support to [his wife] in the

amount of 41% of [Matikke’s] net monthly income, or $1,133

per month.

7. The child for whom [Matikke] is obligated to pay

child support in this action is not a member of the primary

family unit.

8. The paramount interest of preserving the primary

family unit requires that the amount of child support to be paid

for the benefit of a child who is not a member of the primary

family unit be calculated by applying the appropriate

percentage of the child support obligor’s net monthly income

after deduction of the amount of child support being paid for

the benefit of the primary family unit. 

In calculating Matikke’s modified child support obligation for Megan, the trial court

reduced Matikke’s net income of $2,763 by $1,133, the amount of support Matikke was

ordered to pay for the marriage’s three minor children. From Matikke’s remaining net

income of $1,630, the trial court ordered Matikke to pay twenty-one percent (21%), or

$342.33, as support for Megan. The trial court’s order of modification was entered on

September 11, 1996, two days after entry of the pendente lite support order in the divorce

action. 

On appeal, the State contends that the trial court erred in modifying its previous

order of support entered on behalf of Megan based on the pendente lite order of support

subsequently entered in Matikke’s divorce action. We agree because, while the trial court

was required to consider the previous order of support for Megan in establishing Matikke’s

child support obligation in the divorce proceeding, the trial court’s subsequent pendente

lite order entered in the divorce action was an improper basis upon which to modify the

prior support order for Megan.

In establishing a parent’s child support obligation, the trial court is required to

consider previous orders of support for the obligor’s other children. Specifically,
4

Tennessee’s Child Support Guidelines require the trial court, in determining the obligor’s

net income from which child support is calculated, to subtract “the amount of child support

ordered pursuant to a previous order of child support for other children.” Tenn. Comp. R. &

Regs. tit. 1240, ch. 2-4-.03(4) (amended 1994) (emphasis added).

In construing this provision of the Guidelines, this court has held that, in order for

a prior support obligation to constitute a “previous order,” the obligor “must be both

ordered by a court and actually paying” child support pursuant to that order. Boyd v. Boyd,

No. 02A01-9210-CH-00294, 1993 WL 8379, at *1 (Tenn. App. Jan. 20, 1993); accord

Kirchner v. Pritchett, No. 01A01-9503-JV-00092, 1995 WL 714279, at *5 (Tenn. App.

Dec. 6, 1995) (obligor’s net income may not be reduced by payments for support of other

children unless payments are being made pursuant to court order). The requirement of a

previous court order “insures the awarding court that the obligor is legally liable for the

amount of child support claimed as a deduction.” Tower v. Tower,

No. 02A01-9407-CV-00170, 1995 WL 650131, at *9 (Tenn. App. Nov. 3, 1995).

Although the Guidelines do not define what is meant by a “previous order,” generally

accepted definitions for “previous” include “[a]ntecedent; prior; before” and “going before

in time or order.” Black’s Law Dictionary 1070 (5th ed. 1979); Webster’s Ninth New

Collegiate Dictionary 933 (1990). Applying these definitions, we conclude that, for

purposes of calculating Matikke’s child support obligation under the Guidelines, the only

“previous” order that the trial court properly could consider was the initial order of March

1996 establishing Matikke’s child support obligation for Megan. This March 1996 order

clearly preceded the September 1996 pendente lite order for Matikke’s other three

children. 

The plain import of the Guidelines’ language is that, in calculating the amount of

child support to be ordered in Matikke’s divorce action in September 1996, the trial court

was required to consider its previous order of child support for Megan entered in March

1996. Instead, the trial court calculated Matikke’s child support obligation in the divorce
2W e recognize that the September 1996 pendente lite order is not the subject of this appeal. In

addressing the propriety of the pendente lite order, however, we note that neither the State nor Davis were

a party to the divorce action and, thus, had no standing to appeal the pendente lite order.

3W e also question the trial court’s stated goal of “preserving the primary fam ily unit,” inasmuch as it

appears that the purpose of Matikke’s divorce petition is just the opposite.

4

In amending the Child Support Guidelines in December 1994, for example, the Department of Human

Services responded to criticism of the October 1989 version by clarifying some of the Guidelines provisions.

See Kirchner v. Pritchett, No. 01A01-9503-JV-00092, 1995 WL 714279, at *5 n.5 (Tenn. App. Dec. 6, 1995).

5

action as if the March 1996 order for Megan did not exist. The trial court compounded its

error by then using the incorrectly calculated support obligation in its pendente lite order

from the divorce proceeding to justify modifying Megan’s child support award. In this

regard, we reject Matikke’s contention that, because the order modifying child support for

Megan was entered subsequent to the pendente lite order, the pendente lite order

somehow qualified as a “previous” order. We are particularly reluctant to adopt such a

strained construction in the present case, where the trial court failed to comply with the

Guidelines when it calculated the pendente lite award.2

 In reviewing the Child Support Guidelines, we can find nothing therein which would

support the trial court’s modification of Megan’s previous support order based on a

subsequent support order for other children. Moreover, we find nothing in the language

of the Guidelines to support the position that, in establishing child support obligations, trial

courts should give preference to children belonging to the obligor’s “primary family unit.”3

If anything, the Guidelines express a preference for children for whom a child support order

is established first in time, regardless of whether the child was the product of a valid

marriage or whether the child ever resided with the obligor. We recognize that this

preference may work to the detriment of children for whom a subsequent order of child

support is entered. We believe, however, that this is an argument more appropriately

addressed to the General Assembly or to the Department of Human Services, the entity

responsible for promulgating the Child Support Guidelines.4

The trial court’s order modifying child support is hereby reversed, and this cause is

remanded for reinstatement of the trial court’s previous order of support entered in March
6

1996 and for any further proceedings consistent with this opinion. Costs of this appeal are

taxed to Appellee, for which execution may issue if necessary.

 

HIGHERS, J.

CONCUR:

 

CRAWFORD, P.J., W.S.

 

FARMER, J.