Tennessee Appeals Court Decision on Willful Underemployment in Child Support Case

checkThe determination of child support payments can be one of the most contentious parts in any divorce or family law proceeding. The state of Tennessee has enacted guidelines to be used in setting child support payments for the non-custodial parent.  The Tennessee child support guidelines include a provision that allows a court to attribute additional income to a parent upon a determination that the parent has engaged in willful unemployment or underemployment. The rationale for this rule is that a parent should not be able to avoid financial responsibility by choosing not to exercise his or her earning capacity.

Importantly, the sole motivation to avoid child support payments is not required for a finding of willful unemployment/underemployment. The Court of Appeals of Tennessee, at Nashville, examined the relevant factors in the willful underemployment case of In Re: John H.B. Even in this case, where the father had become willfully underemployed prior to the birth of his child, the intentional act allowed the court to impute additional income for the purposes of child support.

The case arose from a mother’s petition for child support and parenting schedule. The child involved in the case had been born out of wedlock, but the father had acknowledged paternity. In response to the mother’s petition, the father contended that he had paid sufficient support in the amount of $500 per month. Following numerous hearings on the matter, the trial court found that the father was voluntarily underemployed and set the child support amount at $1,455 per month.

The father appealed the decision, arguing that he was “semi-retired” and that the trial court set the support amount based on income from a business that no longer existed. In contrast, the mother asserted that the father still owned real estate and construction equipment.

A Tennessee court, in making a determination regarding willful unemployment or underemployment, will take several factors into consideration. First, a court may consider a parent’s current and past employment to examine whether the choice to accept a lower-paying position was made in good faith. A court may also consider the parent’s education and training, as well as his or her ability to perform work.

In this case, the Tennessee Court of Appeals noted that the father was only 48 years old at the time of the petition for support. Since the father was still in good health and capable of earning a reasonable living, the appellate court found that the decision to remain “semi-retired” was unreasonable given that he had a young child to support. Furthermore, the evidence showed that the father maintained a high standard of living while at the same time reporting a negative gross income on his tax returns. In addition, there was evidence that the father owned a number of pieces of real estate, valued at approximately $600,000. In light of all the evidence, the appeals court found that the father was capable of earning an income in an amount similar to his pre-retirement wages. Therefore, the Court of Appeals affirmed the trial court’s award of a higher child support payment.

If you are experiencing a child support dispute, or any other divorce or dissolution issue, contact one of the skilled Nashville family law attorneys at Martin Heller Potempa & Sheppard. Our lawyers can discuss the background of your case and help you move forward to resolve your legal issues. For an initial consultation, contact one of our attorneys today by emailing info@mhpslaw.com, or call (615) 800-7096.

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