Posted by: koherston | June 9, 2011

Voluntary Underemployment, Modification of Child Support, and Contempt for Violating Paramour Clause in Tennessee Parenting Plan: Kendle v. Kendle

Facts: Mother and Father divorced after a short marriage. Father was ordered to pay child support. The parenting plan also contained the following paramour clause: “Neither party shall have overnight guests of the opposite sex to whom he or she is not married while the child is in his or her custody.” Father filed a post-divorce petition to reduce his child support because his income from his lawncare business had greatly diminished. Mother filed a counter-petition alleging that Father was in contempt for violating the paramour clause because he purchased a home with his girlfriend and lived with her out of wedlock.

After a hearing, the trial court found Father was not entitled to a reduction in his child support because he was “voluntarily underemployed” and came to court with “unclean hands.” The court attributed the diminished income from Father’s lawncare business to the fact that he moved away from Mount Juliet, where his client base was primarily located. As for Mother’s claims, the trial court found Father in civil contempt presumably for violating the prohibition on overnight guests of the opposite sex while the child was in his custody. Father appealed.

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

Voluntary Underemployment. The Child Support Guidelines, which govern the determination of child support obligations, do not presume that any parent is voluntarily underemployed. The determination of whether a parent is voluntary underemployed is a question of fact that requires careful consideration of all the relevant circumstances. The determination may be based on any intentional choice or act that adversely affects a parent’s income. The courts will consider the factors in the Child Support Guidelines, specifically Tenn. R. & Regs. 1240-2-4-.04(3)(d)(2), as well as the reasons for the party’s change in employment. If a parent’s reasons for working in a lower paying job are reasonable and in good faith, the court will not find him or her to be voluntarily underemployed. The courts are particularly interested in whether a parent’s change in employment or income is voluntary or involuntary, and are more inclined to find voluntary underemployment when a decision to accept a lower paying job is voluntary.

In this case, the trial court found Father was voluntarily underemployed based on the fact that his income from his lawncare business diminished after he moved from Mount Juliet, where his client base was primarily located. The trial court stated, “his income went down, but it was voluntary. He’s the one that moved. He is the one that agreed to this and then he moved off.”

Father agreed his income from the lawncare business declined dramatically after the divorce, but insisted the decline was not the result of any voluntary actions on his part. Father blamed the decline on several factors: (1) the economic recession caused several of his clients to begin mowing their own lawns; (2) the summer drought inhibited grass growth; and (3) the divorce caused him to lose several clients who were friends of Mother’s family. Father also testified he attempted to solicit new clients using fliers and word of mouth but was unsuccessful.

The Court of Appeals noted:

Mother presented no proof to refute this testimony; thus, Father’s testimony is undisputed. Father’s explanations for the demise of his lawn mowing business are reasonable and there is no affirmative evidence, direct or circumstantial, that Father voluntarily surrendered his clients. . . .

Considering the record before us, we have determined the evidence preponderates against the finding that Father was voluntarily underemployed, and additional income may not be imputed to him for that reason.

The record similarly lacks evidence showing that additional income should be imputed due to Father’s “education, training, and ability to work,” because he had an “extravagant lifestyle, including ownership of valuable assets and resources . . ., that appears inappropriate or unreasonable for the income claimed by [Father],” or for any other reason. See Tenn. R. & Regs. 1240-2-4-.04(3)(a)(2)(iii)(II), (IV), & (VII) (listing situations, in addition to a finding of voluntary underemployment, in which a court may impute income to a parent for the purposes of calculating child support).

We therefore reverse the trial court’s finding that Father was voluntarily underemployed and the trial court’s decision to impute additional income to Father.

Modification of Child Support. In denying Father’s request for modification of child support, the trial court never calculated Father’s obligation using the Child Support Guidelines. Instead, the trial court ruled:

I just find it unconscionable to come in here and agree to pay a certain amount of child support, everything be set on it, then totally quit the business that you agreed upon, and . . . say you’ve had a decrease. The Court finds Father’s request for a reduction in child support to be unjust. Father comes into court with unclean hands. Therefore, Father’s Petition for a reduction of child support is denied.

The Child Support Guidelines require that decisions to modify existing child support orders be based on a comparison of the amount of the existing child support obligation and the amount that the obligation would be if it were based on the parents’ current income. The record on appeal did not contain a child support worksheet. Without it, it was impossible for the Court to determine whether a “significant variance” existed. The Court remanded the issue back to the trial court with instructions to apply the Child Support Guidelines in determining whether a “significant variance” exists.

Note: The day after the Kendle opinion was released by the Middle Section of the Court of Appeals, the Eastern Section released a similar opinion in Miller v. Miller, holding that “the Child Support Guidelines require both the use of supporting worksheets in setting child support awards and the entry of these supporting worksheets into the record in the manner described by the Guidelines.” In Miller, the trial court’s judgment was vacated and the case remanded to the trial court with instructions to complete the child support worksheets.

Contempt for Violating Paramour Clause in Parenting Plan. Although Mother never specified whether she claimed Father was in civil or criminal contempt, the Court determined it was civil. The purpose of civil contempt is to enforce private rights while criminal contempt is intended to “preserve the power and vindicate the dignity and authority of the law” as well as to preserve the court “as an organ of society.”(For more on the differences between civil and criminal contempt, see my prior post: “A Primer on Contempt in Tennessee.”)

The trial court’s only finding of contempt was as follows: “Father is found to be in contempt for his failure to comply with provisions of the parenting plan. Further, Father’s allegation that Mother was cohabitating when he co-owned a home with his paramour makes a mockery of the court system.”

The Court of Appeals reasoned:

While the court gives some indication of the reason it found Father in contempt, the order does not clearly specify which act or omission constituted contemptuous conduct; moreover, as Father asserts, no curative action was specified to remedy civil contempt. . . . Because the Petition raises many allegations, and the order did not specify which provision(s) of the parenting plan Father willfully violated, we can only speculate as to what act, or failure to act, the trial court based its finding of contempt upon. Was it purchasing a home with a woman to whom Father was not married? . . . [T]here is no basis for this court to affirm a finding of civil contempt against Father.

The trial court might also have based its finding of contempt upon the fact that Father resided and co-owned a home with [his girlfriend] before they were married. This is evident from the court’s statement from the bench that, “I find it a mockery of the court system to accuse her of quote, ‘cohabitating’ under a provision of the parenting plan at a time when he co-owns a home with his paramour.” However, the parenting plan did not prohibit Father from owning a home with [his girlfriend], nor did it prohibit him from residing with her when the child was not present. Thus, these actions cannot properly be considered contemptuous. The parenting plan merely provided that, “[n]either party shall have overnight guests of the opposite sex to whom he/she is not married while the child is in his/her custody.” (emphasis added). There is no evidence in the record to support a finding that Father violated this provision; in fact, Mother admitted that she had no proof that [Father’s girlfriend] or any other woman stayed overnight with Father when the child was in Father’s custody.

The trial court’s finding of contempt was reversed.

Kendle v. Kendle (Tennessee Court of Appeals, Middle Section, April 28, 2011).

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


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