Facts: Mother and Father are the parents of two children. At divorce, Mother was employed as a school psychologist earning $66,000 per year. Father had a MBA and JD from the University of Tennessee. During the marriage, Father had been offered a full-time faculty position at the University of Tennessee. Father declined the offer, instead opting to create a summer camp for the performing arts named “Camp Curtain Call.” Father also worked magic shows in the off-season. Father claimed his annual income was $33,000, although he acknowledged he could work as a part-time professor and earn an additional $24,000-30,000 from that position. After a hearing, the trial court found Father was “woefully underemployed” and imputed his income at $66,000 for the purpose of calculating child support. Father appealed.

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

Father argued the trial court erred in imputing income to him in the amount of $66,000 per year. According to Father, he left his employment at the University of Tennessee many years prior to the parties’ separation with no intent to decrease his income for child support purposes. He argued that the record was devoid of any evidence that his choice of employment was made in bad faith.

For the purpose of determining child support, it is appropriate to impute income to a parent if it is determined that he or she is “willfully and/or voluntarily underemployed or unemployed.” 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. The Child Support Guidelines do not presume that any parent is willfully and/or voluntarily under or unemployed. The purpose of the determination is to ascertain the reasons for the parent’s occupational choices, and to assess the reasonableness of these choices in light of the parent’s obligation to support his or her children and to determine whether such choices benefit the children.

A determination of willful and/or voluntary underemployment or unemployment is not limited to choices motivated by an intent to avoid or reduce the payment of child support. The determination may be based on any intentional choice or act that adversely affects a parent’s income. However, if a parent’s reasons for working in a lower paying job are reasonable and in good faith, the court cannot find him or her to be willfully and voluntarily underemployed.

The Child Support Guidelines provide that to determine whether a parent is voluntarily underemployed, a court can consider the parent’s education, training, and ability to work, as well as his past and present employment. A court finding an obligor parent willfully and voluntarily underemployed must make a finding as to the parent’s potential earnings, taking into consideration the parent’s educational level and previous work experience. For the purpose of calculating child support, courts are directed to allocate additional income to an underemployed parent to an amount that reflects the parent’s income potential or earning capacity. The court must also impute income to an underemployed parent where there is no reliable evidence of income.

The Court concluded:

Upon review of the record, we find that the trial court properly concluded that Father was underemployed. Regardless of any merit that can be discerned from Father’s work as the owner and operator of a camp, this voluntary underemployment will not shield him from his child support obligations. The record clearly supports that Father could have obtained supplemental employment as a university instructor.

Father then argued the trial court erred by imputing income in the amount of $66,000, there being no evidence in the record to support that amount. The Court rejected this argument, too, finding the trial court “articulated a reasonable amount of income for Father for child support purposes.”

Armbrister v. Armbrister (Tennessee Court of Appeals, Eastern Section, November 21, 2011).

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