# FILED
October 17, 19 97 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT NA SHVILLE
STA TE OF TENN ESSEE, ex rel, ) MA RIE OSONG D AVI S, ) ) Plaintiff/Appellant, ) Dav idson Circu it No. 94R -462 ) VS. ) A ppeal No. 01A 01-9702-CV-000 90 ) DAVID MA

TIKKE, ) ) Defendant/Appellee. )
APPEAL FROM THE CI RCUI T COUR T OF DA VIDSO N COU NTY AT NASHVILLE, TENN ESSEE THE HONORABLE MURIEL RO BINSON, JU DGE

JOHN KNOX WALKUP At torney General & R eporter KIMBERLY M. FRAYN Assi stant A

ttorney General Nashvil le, Tennessee Attorneys for Appellant

PAU L N. RUD OLPH Nashvil le, Tennessee Attorney for Appellee

REVERSED A ND REMA NDED

ALAN E. HIGHERS , J.

CONCUR: W. FRA NK CRA

WFORD, P.J., W.S. DAVID R. FA RMER, J.1 Uniform Recipro cal Enf orcement of Support Act . ForTennessee’s cur rent versi on of t he Act, see

T.C.A. §§ 36 -5-201 to -229 (199 6). 2 Plai ntiff State of Tennessee, on beha lf of Marie OsongDavis, appeals the tri al court’s order modifyi ng the child suppor t obligati on of Defendant/AppelleeDavid M atikke. The trial court’s or

der of modification reduc ed Matikke’ s child suppor t obligati on from $580 per month to $342.33per month. For the reasons hereinafter stated, we reverse the trial court’s modification order and rei nstate the trial cour t’s prev ious order r

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

The trial court’s original order resul ted from a Mary land URESA 1 petition filed on behalf of Davis i n April 1994. The petitioner sought an adjudication that Matikke was the father of Davis’ s minor

child, Meg an Ekwopi O song, born Apr il 8, 1989, as well as an order of child suppor

t. When subsequent genetic testing est ablished a 99.32%probability of pate rnity, the trial court entered an o rder adju dicating Matikke to be Megan’s father. Thereafter, Matikke ag reed to pay c hild support for Megan in t he amount of $580 per mont h. Per this agreement, in March 1996 the trial court ent ered an order requirin g Matikke to pay $580 per month retroactiv e to February

9, 1996.

Five months later, in August 1996, Matikke filed a motion to r educe the amount of child suppo rt pr eviously established i n the agreed or der entered by

the trial court. As groundstherefor, Matikke al leged that he had filed a divorce action against his wife in July 1996; that Matikke and his wife had three mino r child ren, al l of whom w ere older than Megan; t hat Matikke d esired to pr ovide for the s upport of Megan an d the three minor children of his marriage; and, fina lly, that a stri ct appli cation of the Te nnessee Child Support Guidelines w

ould work

“a serious

inequity and disadvant age for

the three chil dren” of Matikke’s marriage.

The tri al c ourt

grante d Matik ke’ s mot ion and e ntered an ord er mo dify ing th e previousorder of chil d support entere d in March 1 996. In support of its decision, thetrial court reasoned that:3 4. The parties to t he Divorce action [Matikke an d his wife] and their three minor childr en comprise the primary family unit.

. . . . 6. The c ourt heretofore [i n the divorce action] ordered [Matikke] to pay chil d support to [ his wife] in th e amount of 41% of [Matikke’ s] n et monthly i ncome, or $1,133 per month. 7. The child for w hom [Matikke] is oblig ated to pay child support in this action is not a memb er of the primary family unit. 8. The paramount intere st of preserv ing the p rima ry family unit requi res that theamount of child suppor t to be paid fort he benefit of a child who is not a member of the primary family unit be calcu lated by appl ying theappro priate perc entage of the child support obligor’s net mo nthly inco m e afterdeduction of the amount of c hild suppor t being paid for the benefit of the primar y family unit.

In calculatingMatikke’s modified child s upport oblig ation for Mega n, the trial court reduced Matik ke’s net i ncom e of $2,7 63 by $ 1,13 3, th e am oun t of supp ort Ma tikke wa s ordered to pay for the marriage’ s three minor children. F rom Matikke’ s remaining net incomeof $1, 630, t he trial cour t ordered Mat ikke to pay twenty -one percent ( 21%), or $342.33, as su pport for Megan. The tr ial court’ s order of modificat ion was ent ered on September

11, 1996, two

days after ent ry of the pendente lite support order in the divorce action.

On appeal, the State contends that the t rial court erred in modi fying its

previous order of support entered on behalf of Megan based on the pendente liteorder of support subsequently entered in Matikke’s divorce action. W e agree because, while the trial court
was required to consider the previous order of suppo rt for Megan in establishing Matikke’s child support obligation in the divorce proceeding, the trial court’s subse q uent pendente lite order entered in th e divo rce action w as an improper basis upon w hich to modify the prior suppor

t order for Me gan.

In establishing a parent’s child support oblig a tion, the tri al court is required to consider previ o us or ders of su ppo rt fo r the oblig or’s o ther child ren. Spec ific ally,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 amountof child support ordered pursuant to a previous order of child support forother childr en.” Tenn. Comp. R . & Regs. tit. 1240, ch. 2-4-.03(4) (amende d 1994) (emphasis adde d).

In construing this prov ision of the Guideli nes, this cour t has held that, in order for
a prior suppor

t obligati on to constitutea “previ ous order,” th e o bligor “ must be both ordered by a court and actually paying” child support pursu ant to that order

. Boyd v. Boyd , No. 02A01-9210-CH -00294, 1993 WL 8379, at *1 (Tenn. App. Jan. 20, 1993); accord Kirchner v. Prit chett , No. 01A01-9503-JV-0 0092, 1995 WL 714279, at *5 (Tenn. App. Dec. 6, 1995) (obl igor’s net income may n ot be reduced by payments for su pport of other children unless payments are being made purs uant to court or der). The req uirementof a previouscourt order

“insures the awardi ng court that the ob ligor i s legall y liablefor the amount of child support claimed as a deduction.” Towe r v. Tower , No. 02A01-9407-CV-0017 0, 1995 W L 650131, at *9 (Ten n. App. Nov. 3, 1995).

Althou gh the Guidelines do not def ine 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 Dictio nary 1070 ( 5th ed. 1979); Webster’s Ninth New Collegiate Dictionary933 (1990). App lying these definitions, we concl ude that, for purposes of calcula t ing Matikke’s child support obligation under the Guide lines, the only “previous” order that the trial cour t properly

coul d consider was the initial order of March 1996 establishing Matikke’s child support obligation for Megan. T his March 1996 orde r clearlypreceded the S e ptember 1996 pendente lite order for Mat ikke’s other three children.

The plain import of the Guidelines’ language i s that, in calcul ating 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 f or Megan entered in March 1996. Instead, the tr ial court calculated Mat ikke’ s child su pport obligation in the divorce2 W e recogni ze t hat t he Sep tember 1996 pe nde nte lite orde r is no t the s ubje ct of th is app eal. In

addressi ng the pr opri ety of t he pen den te lite order, however, we note t hat nei therthe St ate nor Davis were a part y t o the di vorce act ion an d, t hus, had n o standi ng to app eal t he pen den te lite order.

3 W e also questi on the tri al court’s stated goal of “preserving the primary fam ily un it,” in as m uc h a s it appears t hat t he purpose ofMatikke’ s div orce pet it ion i s justthe oppo sit e.

4 In amending the Chi ld Support Guide li nes in Decem ber 1994, for example, the Depar tment of Human Servi ces responded t o cri ti cism of the October 1989 v ersi on by clar if yi ng some of the Guidel ines pr ovi sions. See Kirch ner v . Pritch ett , No. 01A01-9503-JV- 00092, 199 5 W L 714279, at *5 n .5 (Tenn . App. Dec. 6, 1995 ). 5 action as if the March 1996 order fo r Megan did not exist. The trial court compounded its
error by then usi ng the incor rectly calculated sup p o rt obligation in its pendente liteorder from the divorce proceeding to ju sti fymodifying Megan’s child support award. In this regard, we reject Matikke’s contention that, beca use the order modifying child support for Megan was entered subsequent to the pendente liteord e r, the pendente liteorder somehow

qualifie d as a “prev ious” order . We are particularly reluctant to adopt such a strained constructi on in the present case, wher

e the trial court fail ed to comply with the Guidelines w hen it calcul ated the pendente liteaward. 2

In revi ewing the Child Support Guidelines, we can find nothing therein which would support the trial court’ s mo dification of Meg an’s prev ious support or der based on a subseq uent support order for other chil dren. Moreov er, we find n othing in th e lan guag e of the Guidelines to support the position that, in establishing child support obligations, trial courts should giv

e preference tochildren belonging to the obligor’s “primary family unit.” 3 If anything, the Guidelines express a preference for children for whom a chi ld support or der is established fir

st in time, regardless of whether the c hild was the product o f a vali d marriage or wheth er t he child ever resided with the obligor. W e recognize that this preference may wor k to the detriment of children f or whom a subsequent order of child suppo rt is entered. We believe, however , that this i s an argument mor e approp riatel y addressed to th e Gen eral Asse mbly o r to the Department of Human Services, the entity responsible for promulgating the Child Su pport Guidelines. 4

The trial court’s or

der modifyingchild suppor t is hereby

reverse d, and this cause is remanded for reinstatement of the trial court’s previousorder of support entered in March6

1996 and for any

further proceedi ngs consistent with this opinion. Costs of this appea l are taxed to Ap pell ee, f or whic h exec utio n ma y issue if ne cess ary.

HIGHERS, J.

CONCUR:

CRAWFORD, P.J., W.S.

FARMER, J.