VOL. 36 | NO. 1 | Friday, January 6, 2012

NASHVILLE (AP) - An appeals court has ruled the state does not have to repay a soldier whose wages were garnished for child support when he was deployed to Iraq, even though the child turned out not to be his.

Christopher Childers was sued for child support while he was in Iraq between November 2007 and January 2009. The state filed a motion for default judgment that he was the father, and the Tennessee Department of Human Services took child support from his military paycheck.

Childers said he never got a letter ordering him to report for a DNA test. After returning from Iraq, a DNA test determined he was not the father. A juvenile court judge ordered the state to reimburse Childers $2,735 that was taken from his wages, but the Court of Appeals of Tennessee overturned that ruling Thursday.

The appeals court said the state was wrong to issue a default judgment, but there was no state law giving juvenile courts the authority to order t he state to reimburse a person who has mistakenly paid child support.

A legislative bill sponsored in 2009 by then-state Rep. Stacey Campfield would have allowed people to recoup child support payments if they were determined not to be the biological father, but the measure failed.

Tony Gottlieb, president of Dad of Tennessee, a group that advocates for the legal rights of fathers, said federal laws prohibit retroactive modification of child support orders, effectively producing a situation in which the state is incapable of refunding money even when the person paying child support turns out not to be the biological parent.

"No one believes that this situation is a fair ruling, but that's the way the law is," he said. "I see these same problems come up over and over again. It's really disappointing to me that legislative leadership doesn't address this situation."

Attorney Mark Sullivan, who practices family law in North Carolina and is a retired Army reserve JAG colonel, said many courts are not aware of the rights under the Servicemembers Civil Relief Act, which protects troops default judgments when they are unable to defend themselves in court.

Sullivan said the act contains protections against default judgments, such as requiring an attorney to be appointed to represent the service member or requiring an affidavit determining whether the defendant is in military service. He said the act only requires such default orders to be vacated and doesn't provide for restitution for damages.

"The SCRA says nothing about the damages that are suffered," he said. "If it is violation, that the court shall set aside the order. What it leaves out is what happens if the damage has already been done."