Facts: Mother and Father divorced after 12 years of marriage.

The proof at trial showed Mother received eight separate gifts of money from her parents over a seven month period after the parties’ separation. The combined value of the gifts was $5,010.

When determining child support, the trial court did not include the gifts from Mother’s parents when determining Mother’s gross income for child support purposes. Instead, the trial court attributed to Mother a gross monthly income of $400.

Father appealed.

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

The statutes and regulations governing child support are intended to assure that children receive support reasonably consistent with their parent or parents’ financial resources. Courts are required to use the child support guidelines developed by the Tennessee Department of Human Services to promote both efficient child support proceedings and dependable, consistent child support awards.

The child support guidelines provide that gross income “shall include all income from any source,” including “[g]ifts that consist of cash or other liquid instruments, or which can be converted to cash.”

Pursuant to the child support guidelines, a court may impute income “[i]f a parent has been determined by a tribunal to be willfully and/or voluntarily underemployed or unemployed.” Courts should increase an underemployed parent’s gross income to an amount that reflects the parent’s income potential or earning capacity based upon his or her educational level and previous work experience.

When discussing the trial court’s award of alimony to Mother, the Court of Appeals determined Mother’s average monthly income to be $1019.26.

After reviewing the record, the Court of Appeals commented:

It is apparent that the [trial] court did not consider Mother’s gifts in its determination of her monthly gross income as required by [the child support guidelines]…. As evidenced of our earlier discussion of Mother’s income [where the Court determined Mother’s average monthly income to be $1019.26], the financial gifts she received from her parents contribute to her monthly income…. Consequently, we vacate the award of child support and remanded the case for redetermination of the parties’ respective child support obligations.

Accordingly, the trial court’s ruling as to Mother’s gross monthly income for child support purposes was reversed and remanded for recalculation.

K.O.’s Comment: The gifts Mother received from her parents after the parties separated were sporadic and of wildly varying amounts. For example, her parents gave her $120 in April and over 23 times that amount ($2831) in May. Is this issue as clear as the opinion suggests? Consider Velez v. Velez, which holds it is improper to consider in the obligor’s income sporadic bonuses that are not guaranteed in the future because doing so is too speculative. Or Vivien v. Campbell, which says that while non-wage income such as inheritance, lottery winnings, etc., can be included in an obligor’s income, the court should look to the dependability of its continued receipt. Vivien says courts should be wary of increasing child support based on possible income that is merely speculative, instead focusing on income regularly received by the obligor. Does Mother have a viable argument on remand?

Howell v. Howell (Tennessee Court of Appeals, Middle Section, December 30, 2014).

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