Facts: After 22 years of marriage, Husband and Wife divorced. Although many issues were raised on appeal, the most noteworthy one, in my opinion, was the question of whether Husband is voluntarily underemployed for child support purposes.

Husband has a bachelor’s degree in Fine Arts. His prior employment paid anywhere from $10-$13 per hour. When the parties’ first child was born, however, they agreed that Husband would be a stay-at-home parent. For over 16 years, Husband did just that.

Two years before the divorce was filed, Husband returned to full-time employment outside the home working at a Trader Joe’s grocery store. He worked 37 hours a week at an hourly rate of $13.85. His gross annual income was approximately $26,600.

Wife argued that Husband was capable of earning more money considering his college education and professional abilities. She complained that he did not make enough effort to find a higher-paying job.

The trial court determined that Husband was not voluntarily underemployed for child support purposes.

Wife appealed.

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

The fairness of a child support award depends on an accurate determination of both parents’ gross income or ability to support. Typically, gross income equals a parent’s earning capacity or ability to support. In certain limited situations, however, the Tennessee Child Support Guidelines allow the court to impute additional gross income to a parent if the court finds a parent is willfully and/or voluntarily underemployed or unemployed. The 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 or voluntarily underemployed or unemployed; to the contrary, the party alleging that a parent is willfully or voluntarily underemployed or unemployed carries the burden of proof. Determining whether a parent is willfully and voluntarily underemployed or unemployed are questions of fact that require careful considerations of all the attendant circumstances. In making this determination, the court must consider a parent’s past and present employment, education, training, ability to work, and any other relevant facts.

The Court rejected Wife’s argument that Husband was voluntarily underemployed:

In this case, the parties agreed that Husband would be a stay-at-home parent, which limited Husband’s ability to begin or maintain a career. Further, although Husband has a bachelor’s degree, he has never earned more than $14 per hour. In fact, his current pay of $13.85 per hour is the highest wage he has ever been paid. Considering all the attendant circumstances, we have determined the evidence in this record does not preponderate against the trial court’s finding that Husband is not voluntarily underemployed. Because Husband is not voluntarily underemployed, there is no basis upon which to impute additional income to Husband for calculating child support.

Thus, the trial court’s ruling as to voluntary underemployment was affirmed.

K.O.’s Comment: There’s a fair amount of caselaw in Tennessee addressing the issue of whether a stay-at-home parent is voluntarily underemployed. See, e.g., Blankenship v. Cox (relevant factors in deciding whether to impute income to a stay-at-home parent include whether the parent acted in the role of full-time caretaker while the parents were living in the same household, the length of time the parent staying at home has remained out of the workforce for this purpose, and the age of the minor children; the court may also consider any additional factors deemed relevant under the particular circumstances of the case); Wheeler v. Wheeler (wife not willfully underemployed where she had been stay-at-home parent for many years and two youngest children were ages 10 and 13 at time of trial); Luttrell v. Luttrell (reasonable decision to be a homemaker and stay-at-home parent does not amount to willful unemployment or underemployment).

Cain-Swope v. Swope (Tennessee Court of Appeals, Middle Section, December 23, 2016).

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