Facts: Mother and Father, parents to two daughters, were divorced. By agreement, Father was designated the primary residential parent and Mother enjoyed 156 days of parenting time. Mother was ordered to pay child support of $364 per month.

The following year, Mother petitioned to change custody. Father answered, denying that a material change of circumstances justifying a change of custody existed.

After a trial, the trial court found there was no material change of circumstances, recalculated mother’s child support obligation (resulting in a slight increase), and awarded Father attorney’s fees of $5600.

Mother appealed.

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

Modification of an award of child support is governed by Tennessee Code § 36-5-101(g)(1). Modification must be based on a “significant variance, as defined in the child support guidelines . . . between the guidelines and the amount of support currently ordered.” Tenn. Comp. R. & Regs. § 1240-02-04-.05(2)(c) defines a significant variance as “at least a fifteen percent (15%) change between the amount of the current support order (not including any deviation amount) and the amount of the proposed presumptive support order.” Tenn. Comp. R. & Regs. § 1240-02-04-.05(3) sets forth the following procedure for determining whether a significant variance is present under the circumstances presented:

To determine if a modification is possible, a child support order shall first be calculated on the Child Support Worksheet using current evidence of the parties’ circumstances. . . . If the current child support order was calculated using the income shares guidelines, compare the presumptive child support order amounts in the current and proposed orders. . . . If a significant variance exists between the two amounts, such a variance would justify the modification of a child support order unless, in situations where a downward modification is sought, the obligor is willfully and voluntarily unemployed or underemployed, or except as otherwise restricted by paragraph (5) below or 1240-2-4-.04(10) above.

After reviewing the record, the Court commented:

The court increased Mother’s child support obligation from $364.00 to $396.00 per month; in so doing the court found that Mother was voluntarily underemployed and imputed income of $34.00 per hour for a 36 hour work week, leading to an annual income of $63,648.88. Mother contends that the finding that she was willfully underemployed is erroneous; she also contends that, even with the imputed income, the court erred in increasing her obligation because there was not a significant variance between her then-existing child support obligation and that increased amount….

We agree with Mother that her increased child support obligation, given the increased income imputed to her, does not exceed 15% of the original obligation and does not constitute a significant variance. Consequently, her child support obligation should not have been modified and that portion of the order must be reversed.

Accordingly, the modification of Mother’s child support obligation was reversed.

McFarland v. Bass (Tennessee Court of Appeals, Middle Section, June 30, 2014).

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