Posted by: koherston | February 17, 2016

No Voluntary Underemployment for Child Support Affirmed in Williamson County, TN: State ex rel. Brown v. Brown

Facts: Mother and Father divorced in 2008. Father’s child support obligation was set at $29 per month.

In 2014, Mother filed a petition to modify child support based on an increase in Father’s income and a decrease in Mother’s income.

At trial, the parties agreed on all the relevant data used to calculate child support. The only issue was whether Mother’s lower income reflected her earning capacity.

Mother worked at a bank at the time of divorce. Three years after the divorce, she quit her job at the bank because it required over an hour commute each way. Mother said this caused her to lose parenting time with the parties’ child.

radiology tech child supportAt the time of trial, Mother was a full-time student working toward her Associates Degree as a Radiology Technician. She was also working full time at a nursing home earning a little over $1400 per month.

The trial court found Mother was not voluntarily underemployed because her decision to quit her job and spend more time with the child was in the child’s best interests and was beneficial to the child’s quality of life. Therefore, the trial court refused to impute income to Mother and based the child support obligation on Mother’s actual income. This resulted in a new child support obligation for Father of $380 per month.

Father appealed.

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

The modification of child support is governed by Tennessee Code Annotated § 36-5-101(g). The initial inquiry in a petition for child support modification is whether there is a “significant variance” between the current obligation and the obligation required by the Child Support Guidelines. A “significant variance” requires a difference of at least 15%.

Even if a significant variance is proven, the trial court may decline to modify child support if the variance is the result of willful or voluntary unemployment or underemployment. The burden of proving a significant variance is the result of willful or voluntary unemployment or underemployment is on the party opposing the modification.

Tennessee’s Child Support Guidelines specify that additional income can be imputed to a parent when (1) the court determines the parent is willfully and/or voluntarily unemployed or underemployed, (2) there is no reliable evidence of the parent’s income, or (3) the parent owns a substantial amount of non-income producing assets. The Guidelines do not presume a parent is willfully and/or voluntarily unemployed or underemployed.

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. If a parent’s reasons for working in a lower paying job are reasonable and in good faith, the court should not find that parent to be willfully and voluntarily underemployed.

One of the factors the Child Support Guidelines say must be considered by the court when determining willful and voluntary unemployment or underemployment is

[w]hether [the parent’s] 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 . . . By increasing the parent’s level of support for that child in the future[.]

After reviewing the record, the Court reasoned:

Mother testified without contradiction that the reason she decided to quit her job at [the bank] was because she was losing time with the parties’ minor child due to the long commute. Mother also testified without contradiction that she believed that the child’s best interest would be better served by her being able to spend more quality time with the child. After quitting her job at [the bank], Mother obtained full-time employment in the healthcare industry at [the nursing home]. There is no evidence that Mother turned down any [] banking-related employment. Mother further testified that, in addition to working full time, she is also attending school full time to obtain a degree as a Radiology Technician and that once she obtains said degree, she anticipates her starting income to be approximately $2916 per month — approximately $1465 more per month than her current income.

The trial court found that Mother was not voluntarily underemployed and that she was motivated by the child’s best interests. The trial court considered the evidence and the attendant circumstances, and found Mother’s reasons for working in a lower paying job to be reasonable.

Father had the burden of proving that Mother was willfully and voluntarily underemployed. Based on the undisputed evidence that Mother resigned from a higher paying job for no reason other than to spend more time with her child and to be a better mother, we cannot say that the evidence preponderates in favor of finding that Mother is voluntarily underemployed.

Accordingly, the trial court’s judgment was affirmed.

State ex rel. Brown v. Brown (Tennessee Court of Appeals, Middle Section, February 8, 2016).

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


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