Calculating Variable Income for Child Support in Tennessee: In re Brittany M.A.

Facts: Mother and Father are parents of Child. After custody of Child was changed from Mother to Father, the Court had to determine each parent’s income in order to calculate the child support obligation. Mother testified that she works as an exotic dancer. Prior to the change of custody, Mother worked every weekend. After the change of custody, in which Mother’s parenting time was changed to every other weekend, Mother only worked those weekends when Child was not with her. Mother’s unchallenged proof was that her average income per weekend was anywhere from $1,500 to $2,000 although she had made as little as $1,200 and on one weekend made $3,500.

The Court found, based solely on the mother’s testimony, that she worked as a dancer at an adult entertainment venue in Greenville, South Carolina on weekends and that she averaged between $2,000 and $1,500 per two or three days of weekend employment. The Court noted that the mother had testified that she had made as much as $3,500 over one weekend. On that basis, the Court concluded that the mother’s gross income was “not less than $90,000 per year” and made this finding for the purposes of calculating child support to be paid by the mother to the father.

Mother appealed this finding as to her income.

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

Mother argued the trial court erred by taking her highest weekend earnings ever and extrapolating that to every weekend [note: $3,500 x 26 = $91,000]. The Court agreed:

The Trial Court’s finding of the mother’s income did not include any reason or analysis for its conclusion. It appears that the Trial Court based its finding on the Mother’s testimony that on one weekend in July 2010 she had made $3,500 in tips when it found that her income was not less than $90,000. This conclusion is not supported by the evidence. The Trial Court’s income determination was not based on a sufficient evidentiary foundation nor was it within the range of acceptable alternatives. We conclude the Trial Court abused its discretion in its determination of the mother’s income. The evidence clearly preponderates and it is reasonable to conclude that the mother’s average income based on a $2,000 average per weekend is $52,000 per years.

Mother then argued the trial court erred in failing to impute her income at the statutory amount of $29,300 because the evidence she presented about her own income was unreliable. The Court quickly rejected this argument, noting Mother was free to present whatever evidence she wanted at trial and explaining the statutory imputed income amount is to be used as a fall back only when the court has no other reliable evidence of the obligor’s income or income potential.

In sum, the Trial Court abused its discretion when it held the mother’s gross income was no less than $90,000 a year. The preponderance of the evidence is that she averaged much less than this amount. Our determination of her annual income is $52,000 per year, and we remand to the Trial Court to recompute the retroactive and prospective child support to be paid by the mother, based on an income of $52,000, per annum.

In re Brittany M.A. (Tennessee Court of Appeals, Eastern Section, October 5, 2011).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.

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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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