Facts: Wife and Husband were divorced, at which time Husband was ordered to pay child support. At the time of divorce, Wife’s income for child support purposes was determined to be $2000 per month. Years later, Wife filed a petition alleging Husband was in contempt for failing to pay his court-ordered child support and alimony. Husband filed a counter-petition to modify his child support obligation, alleging his income had gone down while Wife’s had gone up. After a hearing, the trial court denied Husband’s counter-petition. Husband appealed.

On Appeal: The Court of Appeals affirmed the trial court (but reversed the trial court on other grounds not of interest here).

When the parties were before the Court of Appeals, they disagreed on precisely how the trial court ruled. Husband argued the trial court erred by imputing income of only $1000 per month to Wife, who Husband argued was willfully underemployed. Wife argued the trial court properly kept her income figure at $2000 per month. Presented with a confusing trial court record, the Court of Appeals concluded:

[W]e cannot determine whether the trial court set Wife’s income at $1,000 per month, refusing to impute to her the original $2,000 income, or whether it simply refused to impute additional income beyond the $2,000 amount. Either way, we find the trial court did not err [because neither amount resulted in a “significant variance” enabling Husband to modify his child support obligation].

The Court was able to discern the following facts from the record on appeal:

Just prior to the parties’ divorce, Wife, who holds a bachelor’s degree in early childhood education, was employed in commercial real estate earning $39,000 per year. Due to the economy, however, Wife lost her job. Shortly thereafter, Wife was offered a position working sixty hours per week, earning approximately $30,000 per year. According to Wife, the hours were inflexible and required third-party childcare. Because Husband was not meeting his child support obligations, Wife claims she would have “lost money” by taking the job. Thus, Wife did not accept the position but instead sought employment exclusively with Metro Nashville Public Schools, where her children are enrolled, while seeking to renew her teaching license and while preparing to enter graduate school to earn a Master of Arts teaching English Language Learners. Because Wife was not hired by Metro, in May 2009, she began cleaning houses, earning approximately $1,000 per month.

To determine the proper amount of child support in Tennessee, the court must make an accurate determination of both parents’ gross income or ability to support. The ability to support is sometimes referred to as a parent’s earning capacity. Courts may “impute” income not actually earned when a parent is willfully or voluntarily underemployed based on the premise that parents may not avoid their financial responsibility to their children by unreasonably failing to exercise their earning capacity. The determination of whether a particular parent is willfully and voluntarily underemployed is fact-dependent, and can only be made after consideration of all the circumstances surrounding that parent’s past and present employment or business activities.

The Court applied the facts of this case to the law as follows:

Although in her current occupation Wife earns substantially less than she did just prior to the time of the divorce, we cannot say that Wife is willfully and voluntarily underemployed. Wife testified that during the twenty months since the parties’ divorce, Husband timely paid his child support and alimony obligations only three times. Based on the non-receipt of this money, Wife claims she was unable to contract for childcare, causing her to lose at least one job opportunity, and essentially forcing her to seek work from home or with a flexible schedule so that she could provide the childcare herself. The record reveals that Wife began cleaning houses only after her significant efforts to obtain a position with Metro Nashville Public Schools failed. Additionally, it shows that after Wife began cleaning houses, she continued to seek employment with Metro, she completed her CEUs to renew her teacher’s license, and she was accepted into graduate school. Based on the evidence presented, we find Wife’s occupational choice reasonable. Accordingly, we find that the trial court did not err in refusing to impute income beyond $2,000 per month to Wife, nor did it err if it reduced Wife’s income to $1,000 per month.

Bowers v. Bowers (Tennessee Court of Appeals, Western Section, April 7, 2011).

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