Posted by: K.O. Herston | November 26, 2012

Accepting Lower Paying Job is Not Voluntary Underemployment for Purposes of Tennessee Child Support: Guthrie v. Guthrie

Facts: After the parties’ divorce, Father paid child support for their two children. After their oldest child reached the age of majority and graduated from high school, Father filed a petition to modify child support. In addition to the child’s emancipation, Father alleged he could no longer work as an occupational therapist because of multiple — and undisputed — health issues, including a debilitating back injury, lumbar scoliosis in his spine, carpal tunnel syndrome causing numbness in his hands, and an arthritic knee limiting his ability to stand for prolonged periods of time. Instead, Father now worked as the manager of a fast food restaurant earning considerably less income. Mother alleged that Father was voluntarily underemployed, and requested that the trial court set Father’s child support obligation as if he worked full time as an occupational therapist. The trial court rejected Mother’s contention that Father was voluntarily underemployed. Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court.

The burden of proving that an obligor parent is willfully or voluntary underemployed is on the party opposing the modification. The determination of whether a parent is willfully and voluntarily underemployed is a highly fact-driven inquiry that must take all attendant circumstances into account. A determination of willful and/or voluntary underemployment or unemployment is not limited to choices motivated by an intent to avoid or reduce the payment of child support. The determination may be based on any intentional choice or act that adversely affects a parent’s income. When a parent’s choice to work in a lower-paying job is reasonable and in good faith, however, the courts will not find the parent to be willfully and voluntarily underemployed.

After reviewing the record, the Court concluded:

Although Mother had the burden to prove that Father was voluntarily underemployed, she failed to counter the evidence presented by Father regarding his health issues. The undisputed evidence in the record clearly provides that Father’s decision to change occupations was prompted by his inability to meet the physical demands working as an occupational therapist. . . . Thus, we find that Father’s decision to accept a lower-paying job was reasonable and made in good faith.

Finding that the evidence did not preponderate against the trial court’s finding that Father was not voluntarily underemployed, the Court affirmed the trial court’s ruling.

Guthrie v. Guthrie (Tennessee Court of Appeals, Western Section, October 23, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.


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