Facts: When the parties divorced in 2001, Father was ordered to pay child support of $642 per month as well as 21% of any overtime or bonuses received as additional child support to account for his fluctuating income. Father was also ordered to provide Mother with a copy of his income documentation each quarter.

In 2003, Father’s child support obligation was increased to $1038 per month based on the average of Father’s actual incomes over the preceding three years. Father was also found in civil contempt for failing to provide Mother with verification of his income on a quarterly basis. The 2003 Order did not specify that Father was required to continue providing Mother with proof of his income each quarter. Moreover, it did not mention anything about his prior obligation to pay 21% of any overtime or bonuses received as additional child support.

in 2011, Mother again petitioned to have Father found in civil contempt based on his failure to provide proof of his income since 2003. Mother also sought a judgment for the arrearage resulting from Father’s failure to pay 21% of any overtime or bonuses received as additional child support since 2003.

The trial court found Father in civil contempt for failing to comply with the 2001 Order’s quarterly proof of income requirement and ordered Father to pay a child support arrearage of $21,700. Mother was also awarded over $10,000 for her attorney’s fees. Father appealed.

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

The Child Support Guidelines provide the approach for dealing with fluctuating income. If an obligor parent receives variable income, such as commissions, bonuses, or overtime pay, the variable income must be “averaged” and added to the obligor parent’s fixed salary. The Guidelines themselves do not prescribe how variable income should be averaged. Therefore, it is left to the courts to determine on a case-by-case basis the most appropriate way to average fluctuating income.

Provisions that provide for fluctuating child support obligations are not permissible. Instead of providing a formula by which a child support obligation might fluctuate, Tennessee Code Annotated § 36-5-101(a)(2) requires courts to provide for the future support of a child “by fixing some definite amount or amounts to be paid in monthly, semimonthly, or weekly installments, or otherwise, as circumstances may warrant….” Recognizing that the Guidelines do not provide a method or instruct the courts about how to average a parent’s fluctuating income, the courts determine on a case-by-case basis the most appropriate way to average fluctuating income.

After reviewing the record, the Court concluded:

The evidence in this case is that Father’s income fluctuated depending on overtime, bonus, profit-sharing, or incentive program payments he received….

[Because Father’s overtime and bonuses over three years were included in the averaging of his income in 2003,] the trial court could not have intended to require him to pay a percentage of his fluctuating income in addition to the definite amount that was based on his total income. That would amount to double counting that type of income. Additionally, we presume the trial court intended to award a definite amount, instead of an amount that fluctuated, in compliance with our interpretation of the statute’s clear language.

Accordingly, we conclude that the 2003 Order that set Father’s child support at a definite amount per month replaced the earlier Order that was based upon a method of calculation that had been determined impermissible. The 2003 Order did not require that 21% of Father’s income over this base salary be paid as child support. Even if it had purported to do so, we would not have enforced such an order.

Mother acknowledged that Father has consistently made child support payments of $1,038, which is the amount he was ordered to pay in 2003. Therefore, he was not in arrears in his support. To hold Father liable for an amount above the $1,038 per month ordered would be to modify his child support obligation, and such an obligation cannot be modified retroactively.

We therefore reverse the trial court’s order determining that Father owes an arrearage of child support….

With the contempt finding reversed, the Court also reversed the award of attorney’s fees to Mother.

Allen v. Allen (Tennessee Court of Appeals, Middle Section, October 9, 2013).

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

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