Facts:  Mother filed a petition to increase Father’s child support.  Father responded by arguing Mother was willfully underemployed within the meaning of the Child Support Guidelines.  After a hearing, the Special Master found Mother to be willfully underemployed.

At the hearing, Mother claimed that she had no income at all in 2007 or 2008. However, the special master noted that Mother owned at least six rental properties during 2007 and sold two homes that she constructed. The special master also observed that “Mother owned and operated a flower shop and video shop at a huge loss according to the Mother, but persisted in this course of action with no diminution in her lifestyle.” The special master attributed income to Mother in the amount of $29,300.00 per year for 2007 and 2008.

The Mother has been employed in the construction and lending industry for most of her adult life and has a bachelor’s degree. Nothing prevents the Mother from working for someone else yet she has not sought work simply saying that she cannot live on minimum wage. Instead, the Mother is asking the Special Master to find that she is able to live on nothing. The Special Master notes that the Mother owns considerable rental property and is not behind on her mortgage or line of credit. Even allowing for the fact that she could use half of her One Thousand Dollars and No Cents ($1000.00) per month child support to pay her mortgage payment, the Special Master is at a loss to explain how the Mother could then afford to buy food for herself and the minor child and to put gas in her Toyota Tundra that she uses for work.

The special master determined that it was not “reasonable for the Mother to continue as a contractor given the poor residential home sales market, the failure of the Mother’s side businesses and the fact that the Mother has reported a negative income to the IRS for the last three (3) tax years.” The special master was critical of Mother’s decision not to seek other work when her side businesses had failed and construction sales were weak.

Mother objected to these findings but the trial court confirmed them.  Mother appealed.

The Court of Appeals affirmed the trial court’s finding that Mother was willfully underemployed.

Under the Child Support Guidelines, imputing additional gross income to a parent is appropriate if the parent is found to be willfully and/or voluntarily underemployed or unemployed.  The purpose of the determination [of willful and/or voluntary underemployment or unemployment] is to ascertain the reasons for the parent’s occupational choices, and to assess the reasonableness of these choices in light of the parent’s obligation to support his or her child(ren) and to determine whether such choices benefit the children.  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.  The Child Support Guidelines do not presume that any parent is willfully and/or voluntarily underemployed or unemployed; the burden of proof is on the party alleging that a parent is willfully or voluntarily underemployed or unemployed.

There are a number of factors that a court may consider when making a determination of willful and voluntary underemployment. Those applicable in the present case include the following:

(I) The parent’s past and present employment;

(II) The parent’s education, training, and ability to work; . . .

(IV) A parent’s extravagant lifestyle, including ownership of valuable assets and resources (such as an expensive home or automobile), that appears inappropriate or unreasonable for the income claimed by the parent; . . .

(VI) Whether unemployment or underemployment for the purpose of pursuing additional training or education is reasonable in light of the parent’s obligation to support his/her children and, to this end, whether the training or education will ultimately benefit the child in the case immediately under consideration by increasing the parent’s level of support for that child in the future;

(VII) Any additional factors deemed relevant to the particular circumstances of the case. . . .

We agree with the special master that Mother was willfully and/or voluntarily underemployed. Mother focused her efforts on extremely unsuccessful businesses despite having training and experience in other fields. Mother testified that she had not sought other employment and that a minimum wage job would still not cover her expenses. This is an unacceptable excuse when Mother was already earning negative income.

Parents have an affirmative obligation to earn as much as they can to support their children.  When they make choices that negatively affect their earning capacity, the courts can and will impute income to them when determining their child support obligation.

Bradley v. Bradley (Tenn. Ct. App. July 8, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.