Facts: Mother and Father are the unmarried parents of Child. Mother petitioned the court to establish child support. At the hearing, Father failed to produce any proof of income as he had been instructed. Instead, Father, who was not represented by a lawyer, testified he was unemployed and had been surviving on the financial generosity of family members and his girlfriend. After finding that Father lacked credibility, the trial court found Father to be voluntarily unemployed and imputed income to him of $50,000 per year for child support purposes. In a subsequent contempt hearing, Father testified he was employed and earned approximately $320 per week. Father also presented a tax return showing income of $8,327. Father appealed the Child Support Magistrate’s ruling to the Juvenile Court Judge, who summarily dismissed it, even refusing to allow Father to submit an offer of proof. Father appealed.

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

Whether a party is willfully and voluntarily underemployed or unemployed is a question of fact. In making its determination, the trial court must consider the party’s education, training, ability to work, past and present employment, and whether the present job choice was reasonable and made in good faith. Although a person has a right to seek fulfilling employment, an obligor parent will not be allowed to lessen his or her child support obligation by choosing to work at a lower paying job when he or she has the ability to earn a greater salary.

Here, the trial court based its finding of willful and voluntary unemployment, in part, on the fact that Father had not submitted reliable evidence of his income. The trial court further imputed the Father’s income to an amount based upon wages earned 18 years ago in a casino job that was eliminated when the law changed and the casino shut down. Neither Mother nor the State offered any evidence to show that Father’s present earning capacity was $50,000 or that his lower earnings were either willful or voluntary.

The Court reversed and remanded the case back to the trial court, explaining:

Under Tennessee law, there is no presumption that a parent is willfully or voluntarily underemployed or unemployed. The party alleging that a parent is willfully or voluntarily underemployed or unemployed carries the burden of proof. Consequently, the State, acting on Mother’s behalf, had the burden of demonstrating that Father was willfully or voluntarily underemployed.

Finding that the record failed to support such a finding, the Court reversed and remanded the case back to the juvenile court.

Interestingly, a footnote explains that the trial court found Father in contempt for failing to pay child support and ordered his incarceration until he paid the arrearage of $2,772, which amount Father was found to have in his pocket in cash at the hearing. Classic.

In re Hannah M.N. (Tennessee Court of Appeals, Eastern Section, December 2, 2011).

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