Facts: A child was born to unmarried parents.  Once paternity was established, Father–an attorney–was ordered to pay $235 per month for child support but “without a presumption of correctness until the Mother is able to further investigate her claims that support should be more.” At trial, Father argued his earning capacity was below $40,000.  The trial court examined Father’s expenses and commented:

When I come up with all those numbers, we’re pushing three thousand dollars ($3,000.00) a month in bills. . . . [T]hat’s about twenty-five thousand ($25,000.00) more a year in recurring expenses, and that’s with me being as minimalistic as I can on this subject. So, there’s no way what you’re showing in your income is accurate. It is not accurate. . . . I’m simply saying that the amount of your income is not flushing with the amount of your expenses. I believe that you do have and have had, since the birth of this child, the ability to make a minimum of forty thousand ($40,000.00) a year income . . . .”

Father appealed, claiming the trial court erred by imputing income to him of $40,000 a year.

The Court of Appeals affirmed the trial court.

The Trial Court’s finding that Father’s income was $40,000 per year was based primarily on the fact that his expenses showed his income is greater than he testified to at trial. This was a factual determination made by the Trial Court.  If Father’s net income was as low as he claimed, he simply could not be paying the expenses that he was incurring. Accordingly, the evidence does not preponderate against the Trial Court’s finding that Father either was capable of making or actually was making $40,000 per year.

Practice tip: When evidence of obligor’s income is unreliable, take a look at their expenses. Evidence of income can be found by implication from their expenses, as happened here.

Miller v. Welch (Tennessee Court of Appeals, Oct. 12, 2010)

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