Child Support Modification in Tennessee: Farris v. Bryant

Facts: Father, acting without a lawyer, failed to offer evidence of his income at the parties’ divorce trial so income was imputed to him in order to determine child support. Father was later found to be in contempt after falling behind on his child support obligation. Father filed a petition to modify his child support, arguing his income was substantially less that the imputed amount and the existence of an additional minor child for whom he was required to pay child support. The trial court denied Father’s motion “because he still had an arrearage and to allow a modification would be to reward someone with unclean hands.” The trial court also found Father was “capable of earning more than he was” and, therefore, that he was willfully underemployed. Father appealed.

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

On appeal, Father argues that the trial court erred in denying his motion to reduce his child support obligation. Father contends that there is a “significant variance” in the form of an after-born dependent minor child, and that the evidence does not support a finding of willful underemployment. He asserts that the trial court erred in refusing to modify his child support obligation, because Father had an existing child support arrearage, and that the trial court was required to use a child support worksheet in determining Father’s child support obligation.

In response, the State simply maintains that the trial court did not abuse its discretion.

Nice response, State.

The child support guidelines provide that, where child support has been set based on imputed income, the obligor parent may seek to modify the existing child support order by providing reliable evidence of  income, even in the absence of a “significant variance” that would otherwise be required.

Thus, even where there is no “significant variance,” an obligor parent such as Father, whose existing child support obligation is based on income that was imputed for lack of reliable evidence of income, may ask the trial court to prospectively “re-set” his child support, if he furnishes the trial court reliable evidence of his income.

In this case, Father had an additional basis for modification of his child support: an additional minor child, for whom he was paying support, born after entry of the divorce. A change in the number of dependent minor children is included within the circumstances of what constitutes a “significant variance” under the child support guidelines.

The child support guidelines provide that a trial court “shall not refuse to consider modification of a current support order relating to the payment of prospective support on the basis that the party requesting modification has accumulated an arrears balance, unless the arrearage is the result of the intentional actions by the party.”

Thus, under the guidelines, the trial court was not permitted to deny Father’s motion to modify based on the mere existence of an arrearage. As the trial court heard no evidence, there was no basis for the trial court to conclude that Father’s arrearage was the result of his “intentional actions.”

The Court also found the equitable doctrine of “unclean hands”—which requires a showing of “unconscionable, inequitable, or immoral conduct” concerns the same matters of which the person complains—was inapplicable.

Here, Father did not seek equitable relief and did not seek erasure of his existing arrearage; he sought prospective relief pursuant to Tennessee statutes and the child support guidelines, to reduce his child support payments going forward. Certainly there was no proof of conduct that was unconscionable, inequitable or immoral; indeed, there was no proof at all. We find that the trial court abused its discretion in relying on the unclean hands doctrine to summarily deny Father’s motion.

Regarding willful underemployment, the Court has previously noted:

In certain limited situations, . . . the Guidelines provide that a court may “impute” income to a parent, that is, assign or attribute an income level to a parent that may not reflect the parent’s actual gross income. This is based on the premise that parents may not avoid their financial responsibility to their children by unreasonably failing to exercise their earning capacity. Thus, the Guidelines state that income may be imputed to a parent who is willfully or voluntarily underemployed.

To determine the reasons for the obligor parent’s choice of occupation and to assess the reasonableness of the choice, the court may consider the parent’s past and present employment, the parent’s education, training, and ability to work, and whether the parent has an extravagant lifestyle that is not appropriate for the claimed income level. The determination of whether the parent’s alleged underemployment is willful or voluntary “may be based on any intentional choice or act that affects a parent’s income.”

After reviewing the record, the Court concluded the evidence did not support the trial court’s finding that Father is willfully or voluntarily underemployed.

Here’s my favorite line from the Opinion: “The State argued that the fact that Father had a cell phone up until three months prior to the ultimate hearing in this matter constitutes proof of a lavish lifestyle.”

The Court’s terse response: “This argument is without merit.”

You can almost see them rolling their eyes.

State ex. rel Farris v. Bryant (Tennessee Court of Appeals, Western Section, February 24, 2011).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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