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Calling Tennessee’s child support guidelines “state-mandated, court-enforced child abuse,” the Tennessee Court of Appeals on Jan. 29 upheld a trial court finding that part of the law is unconstitutional. Gallaher v. Elam, No. E-2000-02719-COA. But the court’s minimal constitutional analysis virtually assures that the state supreme court will hear the case on appeal, lawyers for all sides said. The statute requires a court issuing a child-support order to consider only those children who will be the beneficiaries of the order, but not any other children of the parent who is subject to the order, when computing the amount of support. In the case at bar, a Knox County Juvenile Court judge gave appellant Dr. Curtis Elam no credit for supporting the three children of his marriage when ordering Elam to pay $1,800 per month to Dee Ann Curtis Gallaher, the mother of a boy he fathered out of wedlock. Writing for the appeals court, Presiding Judge Houston M. Goddard said the net effect of the law, codified as Tenn. Comp. R. & Regs. R. 1240-1-4.03(4), is to allocate more money to children born of earlier, now-broken relationships than to children of later, intact relationships. “Because the state has no business discriminating between children based solely on the fact of a divorce, there is no legitimate state purpose in requiring a parent to allocate his or her income more to one child than another,” Goddard wrote. The court concluded that the law violated the due process and separation of powers provisions of the state and federal constitutions. Gallaher’s attorney, Wayne D. Wykoff of Knoxville, Tenn., charged that the ruling benefited only the wealthy. “The difference is dollars,” he said. Noting that the lower court had included an additional $200 award because Elam does not visit his son, Wykoff said, “This child is not going to grow up with anywhere near the lifestyle” of Elam’s other children. Defending the statute, he added, “The only thing left is to throw money at the problem.” Wykoff predicted that the state’s high court would hear the case because the attorney general’s office is bound to defend the statute. Noting the appeals court’s meager constitutional analysis, he added, “We hope to get that at the supreme court.” Elam’s lawyer, L. Caesar Stair III of Knoxville’s Bernstein, Stair & McAdams, countered, “We think it was the right decision.” But, he, too, noted the court’s lack of constitutional analysis and predicted the supreme court would hear the case. Nonetheless, Stair said the Goddard court made the right call. “All children are created — and should be treated — equally. This has nothing to do with when they were born.” The appeals court remanded the matter, suggesting that the trial court fashion an award either jointly accounting for all four children, or subtracting the three-child guidelines amount from Elam’s net income and then rendering an award for Gallaher’s son alone. Neither lawyer agreed with the latter formula. Stair said it contradicted the court’s decision. A spokesman for the attorney general said the case would be appealed.

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