Can a Tennessee court order child support between separated married parents who don't have a divorce or separation decree yet?

Subject

Opinion No. 12-42, Authority to Award Child Support in the Absence of a Divorce or Separation Decree, March 21, 2012

Plain-English summary

Representative Craig Fitzhugh asked a deceptively simple question. If a married couple in Tennessee separates, but neither files for divorce or legal separation, can a court still order one parent to pay the other child support? The intuition might be that "you can't get child support without first formally being separated or divorced." The AG said that intuition is wrong. Tennessee provides multiple statutory paths, and each is enough on its own.

The cleanest path was Tenn. Code Ann. § 36-5-101(a)(2): "Courts having jurisdiction of the subject matter and of the parties are hereby expressly authorized to provide for the future support of the children, in proper cases." That broad grant did not require any divorce or separation decree. The AG read it as supplying authority in addition to the narrower decree-based authority in subsection (a)(1), because otherwise (a)(2) would be redundant.

Other paths supplied additional coverage:

• Tenn. Code Ann. § 37-1-104(d)(2): in any case where a court has exclusive or concurrent jurisdiction to order child support, the court may issue a child support order when requested. Juvenile, circuit, and chancery courts could hear support petitions between separated parents who hadn't filed for divorce.
• Tenn. Code Ann. § 37-1-151(a): juvenile court could order child support upon finding a child dependent, neglected, unruly, or delinquent.
• Tenn. Code Ann. §§ 36-2-310 and 36-2-311: parentage actions in juvenile and general jurisdiction courts could and did require child support orders.

Result: a parent who needed support before any divorce filing had real options. The legal absence of a decree was not the barrier the question implied.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical background and statutory framework

The two-subsection structure of § 36-5-101

Tenn. Code Ann. § 36-5-101 addressed support orders. Subsection (a)(1) authorized a court to order support "when the marriage has been dissolved either absolutely or by a perpetual or temporary decree of separation." That was the decree-based authority.

Subsection (a)(2) added: "Courts having jurisdiction of the subject matter and of the parties are hereby expressly authorized to provide for the future support of the children, in proper cases." That was broader, untethered from any decree.

The AG's interpretive argument: if (a)(1) already covered all the authority, (a)(2) would be redundant. Courts construe statutes so that no provision is "inoperative, superfluous, void or insignificant." State v. Northcutt, 568 S.W.2d 636, 637-38 (Tenn. 1978); In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). The AG read (a)(2) as supplying authority beyond what (a)(1) provided, including in cases without any decree.

Other paths

• Section 37-1-104(d)(2): "In any case in which the court has exclusive or concurrent jurisdiction to order the payment of child support, the court may issue a child support order when requested by a party." This was a general grant of issuing authority to any court with proper jurisdiction. The AG had previously addressed this in Op. Tenn. Att'y Gen. No. 08-189 (Dec. 23, 2008).

• Section 37-1-151(a): gave juvenile courts authority to order child support when a child was found dependent, neglected, unruly, or delinquent.

• Sections 36-2-310 and 36-2-311: in parentage actions, juvenile and general jurisdiction courts (under § 36-2-302(2)) were required to enter temporary support orders upon a clear and convincing showing of parentage based on genetic tests, and any final parentage order had to include a child support determination.

Statutory construction tools

The AG cited the standard Tennessee toolkit:

• Hayes v. Gibson County, 288 S.W.3d 334, 337 (Tenn. 2009) (give effect to legislative purpose without exceeding statute's scope)
• State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000) (natural and ordinary meaning when unambiguous)
• National Gas Distribs. v. State, 804 S.W.2d 66, 67 (Tenn. 1991) (read in context without "forced or subtle construction")
• In re C.K.G., 173 S.W.3d at 722 (in pari materia with related statutes)
• Barnett v. Barnett, 27 S.W.3d 904, 908 (Tenn. 2000) (avoid absurd or incongruous results)
• Harman v. Moore's Quality Snack Foods, Inc., 815 S.W.2d 519, 525 (Tenn. Ct. App. 1991) (reconcile conflicts and give effect to both schemes where possible)

The application of these tools to § 36-5-101 yielded the broad reading of subsection (a)(2).

A practical illustration

In State ex rel. Taylor v. Taylor, 2006 WL 618291 (Tenn. Ct. App. March 13, 2006), the court applied this authority in a juvenile court setting where the parents had not filed for divorce.

Common questions

What if the parents are married but living apart and one parent wants child support?

Per this opinion, multiple paths existed. The simplest was a petition under § 36-5-101(a)(2) in a court with subject matter jurisdiction (often chancery or circuit court) and personal jurisdiction over both parents. Section 37-1-104(d)(2) also opened juvenile court jurisdiction for support proceedings.

Did the requesting parent need to file a divorce or legal separation to get child support?

No. The AG was explicit that subsection (a)(2) of § 36-5-101 provided authority independent of any decree. The parents could remain married, separated but not legally separated, and still litigate child support.

Was this opinion changing the law or restating it?

Mostly restating. The statutes were already on the books. The AG's analysis was about how to read § 36-5-101(a)(1) and (a)(2) together. The conclusion followed standard statutory construction principles.

Could juvenile court hear a child support petition between separated married parents?

Yes. Section 37-1-104(d)(2) gave juvenile court that authority when it had exclusive or concurrent jurisdiction. Section 37-1-151(a) provided a separate path tied to dependent/neglected/unruly findings.

Did this opinion address the calculation of child support?

No. The opinion addressed authority to order support, not the amount. Tennessee's child support guidelines (which set the calculation methodology) were a separate matter.

What about temporary support orders?

The parentage statutes (§§ 36-2-310 and -311) expressly contemplated temporary support orders upon a clear and convincing showing of parentage. Section 36-5-101(a)(2) was broad enough to support either temporary or permanent support orders depending on the circumstances of the case.

Citations

• Tenn. Code Ann. § 36-5-101(a)(1) (decree-based support authority)
• Tenn. Code Ann. § 36-5-101(a)(2) (general support authority for courts with proper jurisdiction)
• Tenn. Code Ann. § 36-2-302(2) (parentage actions)
• Tenn. Code Ann. § 36-2-310 (temporary support order in parentage actions)
• Tenn. Code Ann. § 36-2-311(a)(11)(A) (final parentage order to include support)
• Tenn. Code Ann. § 37-1-104(d)(2) (general support order authority)
• Tenn. Code Ann. § 37-1-151(a) (juvenile court support after dependent/neglected findings)
• Hayes v. Gibson County, 288 S.W.3d 334 (Tenn. 2009)
• State v. Flemming, 19 S.W.3d 195 (Tenn. 2000)
• National Gas Distribs. v. State, 804 S.W.2d 66 (Tenn. 1991)
• In re C.K.G., 173 S.W.3d 714 (Tenn. 2005)
• State v. Northcutt, 568 S.W.2d 636 (Tenn. 1978)
• Barnett v. Barnett, 27 S.W.3d 904 (Tenn. 2000)
• Harman v. Moore's Quality Snack Foods, Inc., 815 S.W.2d 519 (Tenn. Ct. App. 1991)
• State ex rel. Taylor v. Taylor, No. W2004-02589-COA-R3-JV, 2006 WL 618291 (Tenn. Ct. App. March 13, 2006)
• Op. Tenn. Att'y Gen. No. 08-189 (Dec. 23, 2008)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-042.pdf

Original opinion text

March 21, 2012
Opinion No. 12-42
Authority to Award Child Support in the Absence of a Divorce or Separation Decree

QUESTION

Does Tennessee law permit an award of child support payments between separated married parties who have not yet obtained a decree of separation?

OPINION

Yes. Tenn. Code Ann. § 36-5-101(a)(2) provides that courts having subject matter jurisdiction over the parties in a domestic relations case are expressly authorized to provide for the future support of children. In addition, Tenn. Code Ann. § 37-1-104(d)(2) authorizes any court to issue a child support order when requested if that court has exclusive or concurrent jurisdiction to order support. Finally, Tenn. Code Ann. §§ 36-2-310 and -311 authorize courts to order child support in parentage actions.

ANALYSIS

The question whether authority exists to award child support between married but separated parties who have not acquired a decree of separation requires an examination of the various Tennessee statutes which authorize courts to order child support. When construing a statute, the primary goal of the courts is to give effect to the purpose of the Legislature without exceeding the statute's intended scope. Hayes v. Gibson County, 288 S.W.3d 334, 337 (Tenn. 2009). When a statute is unambiguous, a court will construe its meaning from the natural and ordinary meaning of the words chosen. State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000). The statutory language must be "read in the context of the entire statute, without any forced or subtle construction which would extend or limit its meaning." National Gas Distribs. v. State, 804 S.W.2d 66, 67 (Tenn. 1991). Statutes that are related to the same subject matter should be read in pari materia. In re C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). In addition, a statute should be construed so that "no part will be inoperative, superfluous, void or insignificant." State v. Northcutt, 568 S.W.2d 636, 637-38 (Tenn. 1978). At the same time, a statute should not be construed to produce an absurd or incongruous result. Barnett v. Barnett, 27 S.W.3d 904, 908 (Tenn. 2000). When statutes conflict, it is the role of the courts to reconcile the conflict and give effect to both statutory schemes to the extent possible. Harman v. Moore's Quality Snack Foods, Inc., 815 S.W.2d 519, 525 (Tenn. Ct. App. 1991).

Applying these principles of statutory construction, this Office concludes that Tennessee courts do have statutory authority to order child support when the parents are separated but have not acquired a decree of separation. Tenn. Code Ann. § 36-5-101(a)(1) authorizes a court to order support when a marriage has been dissolved either "absolutely or by a perpetual or temporary decree of separation." Tenn. Code Ann. § 36-5-101(a)(2) provides more general authority for ordering child support, stating that "[c]ourts having jurisdiction of the subject matter and of the parties are hereby expressly authorized to provide for the future support of the children, in proper cases." By the plain language of Tenn. Code Ann. § 36-5-101(a)(2), a court that has jurisdiction over the parties has broad authority to order support, including the authority to issue such an order prior to entry of any separation decree.

A broad interpretation of subsection (a)(2) is consistent with the rule of construction that statutes must be read in pari materia so that no part is rendered "inoperative, superfluous, void or insignificant." State v. Northcutt, 568 S.W.2d at 637-38; In re C.K.G., 173 S.W.3d at 722. In order for subsection (a)(2) to be effective, it must be read as providing authority for courts having subject matter and personal jurisdiction to set child support beyond the authority conferred by subsection (a)(1), such as when the parties have not yet obtained a decree of separation. Construing subsection (a)(1) to stand for the proposition that courts only have the authority to set child support when the parties have obtained a decree of separation would render subsection (a)(2) void or insignificant, as there would be no need to provide any additional authorization than what is already provided in subsection (a)(1). Thus, based upon the above stated principles of statutory interpretation, subsections (a)(1) and (a)(2) should be read as providing courts the authority to order the payment of child support either: (1) upon the dissolution of a marriage, either absolutely or by a perpetual or temporary decree of separation; or (2) when the court finds it proper, provided that the court has subject matter jurisdiction to set child support and personal jurisdiction over the parties in question.

In addition to the express authority to order support set forth at Tenn. Code Ann. § 36-5-101(a)(2), other provisions of Tennessee law authorize courts to order child support in a variety of circumstances, including the circumstances posited in this opinion request. Tennessee Code Annotated § 37-1-104(d)(2) provides that: "[i]n any case in which the court has exclusive or concurrent jurisdiction to order the payment of child support, the court may issue a child support order when requested by a party." Thus, circuit, chancery, and juvenile courts all have jurisdiction to hear and grant petitions for child support when the married parents are separated but have not filed a petition for divorce or legal separation. Op. Tenn. Att'y Gen. No. 08-189 (Dec. 23, 2008); see also State ex rel. Taylor v. Taylor, No. W2004-02589-COA-R3-JV, 2006 WL 618291, at *2 (Tenn. Ct. App. March 13, 2006). Further, Tenn. Code Ann. § 37-1-151(a) allows a juvenile court to order child support upon finding a child dependent and neglected, unruly or delinquent.

Finally, juvenile courts and courts of general jurisdiction are expressly authorized to hear parentage actions. See Tenn. Code Ann. § 36-2-302(2). Tenn. Code Ann. § 36-2-310 requires such courts to enter a temporary order for child support, upon motion of the party, upon a showing of clear and convincing evidence of parentage on the basis of genetic tests, while Tenn. Code Ann. § 36-2-311(a)(11)(A) requires any order establishing parentage to include a determination of child support.

As the above cited statutes establish, Tennessee courts are authorized to order the payment of child support in a variety of contexts even though the married parents are separated but have not acquired a decree of separation.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

MARCIE E. GREENE
Assistant Attorney General

Requested by:
Honorable Craig Fitzhugh
State Representative
33 Legislative Plaza
Nashville, TN 37234-0182