In the case of In Re: Hannah M.N., No. E2010-00342-COA-R3-JV (Tenn. Ct. App. Dec. 2, 2011), the Magistrate for the Juvenile Court of Blount County, Tennessee, held that the child's father was willfully and voluntarily unemployed. Accordingly, the court imputed income to him in order to calculate his child support obligation. The Appellate Court vacated this decision and remanded for further adjudication, showing Tennessee family lawyers how the new standard for this determination works.
This case began by the State filing a petition to set child support on behalf of the Mother in 2008. At a hearing, Father stated he was unemployed but received money from his mother and sister. He also stated in 2007, he made $7.00 per hour and worked forty hours per week and in that in November of 2008 he earned $300 per week at a lawn care service. His testimony regarding employment in previous years included the following: he owned and sold a restaurant in 2005, earning between $8,000 and $10,000 in proceeds; and he worked as a casino manager earning $30.00 per hour. Father had no proof of income for the magistrate at the hearing, even though instructed to do so via the summons served upon him. However, Father did testify that he currently owned a private club where people played cards.
The magistrate imputed income to him of $50,000 per year and to Mother approximately $12,000 per year. Father hired counsel and filed a Tennessee Rules of Juvenile Procedure Rule 34(b) motion asking the court to vacate or modify his obligation, set at $627 per month. The magistrate refused to hear this, stating Father lacked credibility on the issue of how much income he earned from his private club. However, the magistrate did hear Mother's contempt petition against Father, and in his defense he testified that he made $320 per week at the club and his 2008 tax return showed $8,327 in gross income. He was found in contempt and ordered to pay a purge amount of $2,772. Father appealed to the Juvenile Court Judge, who found he had waived his right to a de novo hearing by previously filing his motion to modify or vacate and his appeal was dismissed. Father then appealed to the Court of Appeals.
The Appeals Court pointed out that willful unemployment is a question of fact and the court must consider education, training, ability to work, past and present employment, reasonableness of present job choice and good faith. Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)(2.(iii). The Court stated that Father's lack of proof of income at the first hearing did not give magistrate grounds to impute income. Instead, the party alleging that the other parent is willfully or voluntarily underemployed or unemployed bears the burden of proof. Tenn. Comp. R. & Regs. 1240-2-4.04(3)(a)(2)(ii). Accordingly, the State (acting on behalf of the Mother) had to demonstrate the Father's willful under-or-un-employment. Therefore, the Appeals Court held that the record did not support such a finding against Father for imputed income of $50,000 per year. Therefore, the case is remanded to the Juvenile Court to determine his actual income. The judgment was vacated and the appeal costs were taxed to the State (ex rel. the Mother).