Facts: Father and Mother divorced after 10 years of marriage. By the time of divorce, Mother had not worked outside the home for many years. Her primary role in the family was devoted to raising the parties’ two minor children. At the time of trial, both children were in high school.

Proof at trial showed the jobs available to Mother were entry-level, minimum wage jobs. Mother testified such entry-level employment was not appealing to her and expressed a desire to better herself for her children. She said she wanted to complete the surgical technician program at a nearby technical college. The program would last 12 months. The proof showed the starting pay for a new surgery technician varied from $13-$18 per hour, depending on the specific area of employment.

After awarding rehabilitative alimony so Mother could pursue the education necessary to become a surgical technician, the trial court set child support based, in part, on Mother having no income whatsoever.

Father appealed.

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

Father argued Mother’s income for child support purposes should be set at minimum wage for 40 hours per week.

The Tennessee Child Support Guidelines allow the court to impute additional gross income to a parent if the parent has been determined to be willfully and/or voluntarily underemployed or unemployed. This regulation is designed to prevent parents from avoiding their financial responsibility to their children by unreasonably failing to exercise their earning capacity.

Under Tennessee law, there is no presumption that a parent is willfully and/or voluntarily underemployed or unemployed; to the contrary, the party alleging a parent is willfully and/or voluntarily underemployed or unemployed carries the burden of proof.

Determining whether a parent is willfully and/or voluntarily underemployed or unemployed are questions of fact that require careful consideration of all the attendant circumstances.

Section 1240-02-04-.04(3)(a)(2)(iii) of the Child Support Guidelines provides a list of factors that are to be considered by a court when making a determination of willful and/or voluntary underemployment or unemployment. The relevant factor here is:

(VI) Whether unemployment or underemployment for the purpose of pursuing additional training or education is reasonable in light of the parent’s obligation to support his/her children and, to this end, whether the training or education will ultimately benefit the child in the case immediately under consideration by increasing the parent’s level of support for that child in the future.

The Court first noted Father failed to raise the issue of Mother’s voluntary unemployment with the trial court. Therefore, the Court considered the issue waived. Nonetheless, the Court went on to address the merits of the issue, explaining:

[W]e cannot conclude that the trial court erred by not determining that Mother is willfully and/or voluntarily unemployed. Although Mother’s background and experience qualify her for minimum-wage work, the trial court placed much emphasis in this case on Mother’s desire to pursue future employment as a surgical technician. It specifically awarded her rehabilitative alimony to enable her to pursue her surgical technician degree and found her pursuit of this degree would ultimately benefit both parties…. The trial court clearly endorsed Mother’s commitment to pursuing [education as a surgical technician], and that this factor weighs heavily in Mother’s favor with regard to the issue of imputed income. As previously indicated, the reasonableness of a parent’s decision to pursue additional training or education may be considered in determining whether that parent is willfully and/or voluntarily unemployed or underemployed. For the foregoing reasons, we will not disturb the trial court’s decision to set Mother’s income at $0.00.

Accordingly, the trial court’s judgment was affirmed.

Tidwell v. Tidwell (Tennessee Court of Appeals, Middle Section, February 2, 2016).

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