In an earlier post, I described how child support can be extended indefinitely for an adult child who became severely disabled before the age of 18. I lamented that Tennessee law does not give us a definition of “severely disabled”, or any guidance whatsoever in the determination of whether a disability is severe enough to warrant indefinite support.
The Tennessee Court of Appeals recently had a chance to address this very issue in the case Beverly Lynn Durham (Hess) Cook vs. James Preston Hess, III. This case involves continuing child support for the parties’ adult child (Preston) who was born with spina bifida and related physical and mental health issues. The case had several issues, but I’m only going to concern myself with the issue of whether or not the parties’ adult child was so severely disabled that the father should continue to pay support during the child’s adulthood.
First, a quick review: Under T.C.A. section 36-5-101 (k)(2), child support can be continued past the date a child emancipates if all the following conditions are met:
- The child is severely disabled, AND
- The child is living under the care and supervision of a parent, AND
- It is in the best interests of the child to remain under such care and supervision, AND
- The obligor (person paying child support) has the ability to continue to pay, AND
- The child was severely disabled before reaching the age of 18.
In this case, the trial court heard testimony from several witnesses. The trial court made extensive findings on Preston’s condition (which I’ve edited for brevity):
Preston is a 21 year old man. He was born with spina bifida and has suffered his entire life from the resulting physical and mental problems. He has had over 25 surgeries during his lifetime. He has been hospitalized for associated lung, bladder and bowel infections/problems three times in the last two years. He must catheterize his bladder several times a day and must evacuate his bowels through a stoma in his stomach while in the bathtub. He is completely wheelchair bound and must use an assist bar getting in and out of bed.
Preston graduated from high school with a general education diploma on December 2, 2007. He graduated 259th in his class of 283 with a cumulative grade point average of 1.817.
Preston has had a checking account for his earnings but has a history of allowing other people access to his debit card. On one occasion, over $1,500.00 was taken from his checking account by a person he had “loaned” his debit card to. Preston is not able to manage or balance his account effectively.
Preston has a difficult time remembering to perform the most essential tasks. He has difficulty waking up and dressing on his own on a timely basis. While he does not object to taking medication, he does not remember to take his medications on his own. If left alone, he will often “forget” to eat. He does not remember to perform daily routine tasks, such as washing and folding his clothes or performing routine hygiene. He does not always remember to catheterize his bladder regularly, which leads to bladder infections and accidents. He is not able to use the kitchen stove because he does not remember to turn off the controls. His mother has been unsuccessful in teaching Preston even the smallest tasks, such as ordering supplies or making doctor’s appointments.
Preston has worked at Home Depot since June of 2007. He greets customers and assists them in finding what they are shopping for. Home Depot has accommodated him by allowing him frequent breaks for catheterization and by allowing him to leave work if a bowel accident occurs. Home Depot records reflect that he has received periodic raises but nothing in the record or testimony suggests these are merit raises.
[His psychologist's] testimony was that Preston was capable of working at the exact kind of job he presently holds. He did not indicate that Preston was underemployed nor that he was capable of holding a significantly more difficult job or work more hours.
[T]he evidence is … clear that Preston is not capable of making mature decisions regarding his property or his environment. He does not have the emotional or mental ability to make rational decisions regarding his health. He is not able to plan and carry out appropriate day to day activities that are necessary for his well-being. The evidence shows that Preston is currently and will continue to be unable to live independently. Without intervention, Preston would be a danger to himself, to his health, to his physical and mental well-being, and to his emotional security.
Preston is working to his full qualifications and mental and physical capabilities. His ability to work in no way negates his disability; it does indeed show that Preston and his mother have made every effort for him to live and work to his full capability. The Court specifically finds that the evidence does not support any theory that Preston’s behavior is somehow “normal” for a twenty one year old, or that he is no different than any other 21 year old other than being confined to a wheelchair, or that he is capable of more than given credit for.
Mr. Hess did not dispute any of these findings. What he disputed was that these facts were enough to prove that Preston was “severely disabled” within the meaning of the Tennessee statute. This was an essential argument for the father to make, because if Preston’s disability wasn’t “severe”, the child support would end when he reached the age of 21.
However, after review, the Appellate Court said:
We cannot agree with Father’s position. [T]he determination of whether a particular person is “severely disabled” requires an individualized assessment of how that person’s physical and mental impairments affect his or her ability to live independently. In light of Preston’s limitations, as found by the trial court and amply supported by the evidence, and his need for the continuing care and supervision of Mother, we find no error in the trial court’s conclusion that Preston is severely disabled.
We still don’t have a definition of “severely disabled”, but the Court has made it clear that each case will need to be analyzed on its own unique facts. While it would be nice to have some sort of a firm definition, at least attorneys can be aware that there isn’t a discrete set of requirements that must be followed.
If you are in a situation where continuing child support due to a disability may be appropriate, contact me to find out how I may be able to help you. I’d love to assist you with your case.