Tennessee Divorce Attorney Blog

Goodman v. Goodman, No. W2011-07971-COA-R3-CV (Tenn. Ct. App. May 7, 2012), shows Tennessee Divorce attorneys that without a specific finding of fact regarding willful under-or-un-employment, imputation of income to determine child support is not appropriate.

The parties had four children during their 15 year marriage. As part of the divorce process that began in 2008, the parties entered a consent order on temporary support based on Father's projected income. Later in 2008, Father was fired and returned to a previous employer at reduced pay, impairing his ability to pay child support. Mother filed three scire facieses between 2008 and 2010, resulting in an arrearage award and attorney's fees. Subsequently, Father was imprisoned for nonpayment and as a result was terminated by his employer. In order to maintain insurance on his children, Father took a position at a coffee shop resulting in a significant reduction in pay. Father asserted he was unable to make child support payments and in 2011 a trial was held to deal with the issue. Father testified about his income and submitted his 2008-2010 tax returns. The trial court found that Father's earning capacity was 50k and awarded arrearages based upon that figure as well as attorney's fees.

The appeal addressed three primary issues: whether trial court (1) erred in finding the Father's earning capacity at 50k; (2) erred in awarding Mother arrearages based on 50k; and (3) erred in awarding attorney's fees.

At the time of trial, Father was earning $19,000 per year and could potentially make $42,000 if he was promoted to manager. However, the trial court set his income at $50,000, an imputed amount. Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)(2)(i) provides that imputation of income is appropriate if a court has found specifically that the obligor is voluntarily unemployed or underemployed. In this case, the trial curt's final order made no finding that the Father was either unemployed or voluntarily underemployed. Although Mother argues this finding may be implied from the final order, the Appellate Court determined that the trial court made no finding that Father's choice to leave his former industry of real estate and work at Starbucks was voluntary or reasonable. Accordingly, without such a finding, no imputation of income may be made. Therefore, the issue was remanded to the trial court to calculate child support based on Father's actual earned income and not a projected amount.

Regarding the appeal of the arrearage finding, the Court of Appeals held that because Father had failed to properly file the record of proceeding that occurred during the Referee's determination of such arrearage, the issue could not be addressed on appeal. When no record of the lower court's proceedings are present, the trial court's decision must be affirmed. Therefore, the arrearage determination of $32,225.00 stands. On the issue of Mother's award of attorneys fees, T.C.A. §36-5-103(c) allows a court to award fees in support and custody cases. Here, because the trial court's judgment of current support to by paid by Father was reversed, the award of fees to Mother is vacated and remanded to be re-determined along with the new support amount by the trial court.

The Tennessee Court of Appeals recently held that retroactive child would not be granted during periods when former spouses resumed living together after a divorce. Tennessee divorce attorneys may use this case to argue that child support stops accruing when parties are physically living together even if legally separated or divorced.

In Estes v. Estes, No. M2010-01243-COA-R3-CV (Tenn. Ct. App. Apr. 16, 2012), the parties were married for six years with two children. Wife was given custody of the children and the Husband was ordered to make child support payments. The Wife and children eventually moved back in with Husband. During the four years that they lived together, Husband and Wife opened a joint checking account together. Even though the Wife eventually opened her own account while they were still living together, she still had full access to the joint account. During this time a third child was also born.

In 2006 the parties permanently separated. Wife sought to have Husband pay retroactive child support for all three children and have him pay for the children's medical expenses during the four years they resumed living together post-divorce. The Husband objected to these claims, arguing that during the time that they lived together Wife had full access to their joint checking account. The trial court disagreed, holding that Husband had to pay $32,886 in retroactive child support for the two original children. But because the court refused to have Husband pay for Wife's attorneys fees as well retroactive child support for their third child, Wife appealed to the Tennessee Court of Appeals.

The Tennessee Court of Appeals held that Husband had satisfied the child support order during the period of physical reconciliation, June 2002 through August 2006, and to award Mother child support during those months was in error. This was because during the years that they lived together, Wife had full access to the joint bank account where Husband deposited all of his earnings. Looking to T.C.A. § 36-5-101(f)(1)(2010), the Appellate Court concluded that the purpose of child support is to fulfill the non-custodial parent's obligation to contribute to the child's support. Because the Wife had full access to that account, the Husband met his child support obligation from 2002 through 2006. And while the Wife paid for the children's insurance while they lived together, the Court concluded that she could have easily written herself a check from the joint account to pay for the insurance premiums that were taken out of her paycheck.

In reversing the trial court's order to have the Husband pay retroactive child support for the third child, the court looked to T.C.A. § 36-2-311(a)(11)(A). Because there was no evidence showing that the Husband did not provide for the third child while they were living together, the Appellate Court affirmed the trial court's decision in this matter. As the Appellate Court stated, "The statute and child support guidelines addressing retroactive child support apply in situations where the Father has not provided support for the child, which [was] not the case" here.

The State of Tennessee Attorney General recently issued Opinion No. 12-42 entitled "Authority to Award Child Support in the Absence of a Divorce or Separation Decree" on March 21, 2012.

The opinion states that Tennessee courts do have the authority to obligate parents to pay child support prior to the finality of a divorce or separation, and several statutory references are cited. This is an issue that many Tennessee divorce attorneys should be aware of, because many times child support is litigated prior to a trial and can affect the amount of alimony awarded, if any.

The Opinion explains that the reasoning behind the ability to order support prior to parties becoming divorced is supported numerous times in the Tennessee statute. First, T.C.A. 36-5-101(a)(2) does allow courts with subject matter jurisdiction over domestic relations matters to order a future child support obligation. Further, T.C.A. §37-1-104(d)(2) also allows issuance of child support orders upon request of one or both of the parties. That means that all circuit, chancery and juvenile courts may grant a child support order, whether the parties are still married or not. Further, such courts may grant such an order prior to either party having field a divorce or legal separation complaint, so long as they are physically separated.

Juvenile courts in Tennessee also have the authority to order ongoing child support when a finding has been made of dependence, neglect, unruliness or delinquency under T.C.A. §37-1-151(a). Also, juvenile courts and general sessions courts that are authorized to hear paternity actions may also order child support, but only when a genetic testing has been completed or paternity has been confirmed via consent order. Further, under T.C.A. 36-2-311(a)(11)(A), entitled "Order of Parentage", requires the court entering such an order to calculate both current support and an arrearage. Accordingly, there is seemingly no objection that can be lodged against such an order. However, parents may always dispute the amount of child support or asking for a modification if either parties' income changes after the initial hearing.

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).

In Widener v. Widener, No. M2010-02435-COA-R3-CV, 2011 WL 3566991 (Tenn. Ct. App. June 28, 2011), the Tennessee Court of Appeals reversed a trial court's order when it did not include a spouse's overtime pay and assigned the wife a majority of a car debt when the car actually belonged to the aunt of the husband.

John Widener ("Husband") and Stephanie Widener ("Wife") divorced. During the divorce proceeding, the trial court named Husband as the primary residential parent, and did not include Husband's overtime pay as part of the child support calculation since Husband was not receiving it at the time of the hearing. The court also ruled that Husband only owed $1,000 of the amount owed for a car that Wife used during the marriage when she worked. Wife then appealed the trial court's decision.

The Tennessee Court of Appeals affirmed on one issue, and reversed and remanded on the others. While Wife claimed that Husband was abusive to both her and the children, the appellate court noted that there was domestic abuse committed by both parties, and that Husband was a credible witness regarding his ability to care for his children. Therefore, the appellate court did not find that the evidence preponderated against the trial court's findings regarding custody.

The court came to a different conclusion, though, regarding the trial court leaving out Husband's income derived from overtime. A parent's income is a question of fact, and overtime pay is to be included in the calculations of a parent's income. The trial court did not include Husband's overtime pay because he was not paid for 2 weeks before the hearing. Yet, Husband testified that his overtime income would start back up since it always went "up and down." The appellate court vacated the trial court's ruling and remanded it back to the trial court to recalculate the child support.

Lastly, the appellate court found that making Husband only pay $1,000 towards the car was unsupported by the record during trial. Wife did not have possession of the vehicle after they separated, but it was actually purchased by Husband's aunt. Wife also never acted as surety for the debt when the vehicle was purchased.

The recent Court of Appeals case entitled Pennington v. Hennessee, No. M2010-01873-COA-R3-CV, highlights the law involved in modifying child support in Tennessee.

Parents (never married) entered into a custody agreement setting Father's child support at $128 per week, requiring him to pay for college expenses and maintain health and dental insurance. This was modified in 2005 when co-parenting time became fifty-fifty and Father was to pay school expenses. Each party would be responsible for daycare for the child while in their care and they waived child support. Father remained liable for payment of college expenses. The court order did not state what amount would be owed according to the Child Support Guidelines had the support not been waived. The order also failed to explain why the Guidelines were not used.

In 2010, Mother filed a Petition to Modify Child Support alleging a decrease in her income, higher costs of raising the child, increase in Father's income and Father's failure to buy the child's clothing. Father filed to dismiss the Petition due to the 15% discrepancy in payment not having been met. The trial court denied Mother's Petition because the variance did not exceed 7.5% (after finding Mother qualified for the low-income variance rate instead of the normal 15%). Mother appealed.

Mother alleged the 2005 order was void because it relieved Father of his child support responsibility. Although in general any agreement to waive child support is void and against public policy, in this case the order still required Father to pay school expenses, daycare costs, health insurance and if available dental, vision and orthodontic insurance, 50% of all uninsured costs and costs of college. Further, the agreement did not touch upon either party's ability to seek support in the future. Therefore, the Parenting Plan and Order were found to not be void.

Mother next argued that the order is void because the court did not make finding of fact as required by Tenn. Comp. R. Regs. 1240-2-4-07(1)(c). However, the Appeals Court points out that a court's lack of written finding for a deviation from the Guidelines does not substantiate setting aside the order after the direct appeal period has expired. Finally, the Appeals Court found the trial court correctly ruled in its 2010 order that no significant variance existed and no modification was required.

However, the Court of Appeals reversed the judgment of the 2005 order and remanded the case to make a new determination of the child support obligation pursuant to the Child Support Guidelines to include retroactive support, if necessary, dating back to the time of the filing of Mother' Petition to Modify. The Court based this ruling on the fact that the "materially deficient" 2005 order could not "be used as a shield to oppose Mother's petition to modify."

In Burnine v. Dauterive, No. W2010-02611-COA-R3-JV, 2011, WL 3115967 (Tenn. Ct. App. July 27, 2011), the Tennessee Court of Appeals held that a father did not owe retroactive child support payments when he the mother falsely claimed that the child passed away a few weeks after birth.

In 1992, Victor Dauterive ("Father") and Teresa Burnine ("Mother") had a brief relationship, during which Mother became pregnant and had a child ("Daughter"). Father visited Daughter until Mother lied to Father, claiming Daughter died of Sudden Infant Death Syndrome. Father asked about the funeral, but Mother informed him that she had moved and had already taken care of it.

Due to Mother's drug and alcohol problems, her grandmother gained custody of Daughter. In 2004, Daughter told her grandmother that she wanted to meet Father. Once Father was notified that Daughter was still alive, a Louisiana court held that Father was Daughter's biological father and ordered him to pay child support, which he did. Father then moved to Tennessee to be with Daughter and petitioned the Gibson County Juvenile Court for primary residential parent status. Daughter's grandmother then filed her own, seeking retroactive child support from Father preceding the Louisiana's court order from 2007. Father was awarded custody of Daughter, but was also required to pay the grandmother $40,950 in retroactive child support. Father appealed the juvenile court's decision.

According to Tenn. Code Ann. § 36-2-311(a)(11)(A), a court should consider extent of the father's knowledge that he had a child, the extent to which the mother intentionally failed or refused to notify the father of the child, and the attempts by the child's mother to notify the father of the existence of the child when making an award of retroactive child support. The Tennessee Supreme Court in In Re T.K.Y, 205 S.W.3d 343, 355 (Tenn. 2006) also added that a court may consider the "equity between the parties" when considering the issue of retroactive child support. Tenn. Code Ann. § 36-2-311(a)(11)(B) also adds that when the presumption of the application is rebutted by clear and convincing evidence, the court should deviate from the child support guidelines to reduce any retroactive support.

According to the appellate court, while Father originally knew of Daughter's existence, he was unaware of her existence in the years that followed. Therefore, the juvenile court erred when it concluded that it should only deviate from the guidelines when a father never knew of his child's existence. Regarding the equity between the parties, it was inequitable to require Father to pay retroactive child support when Mother prevented Father from knowing Daughter's existence. Lastly, the purpose of child support is to benefit the child, not to reward or punish a parent. Therefore, it would be inequitable to have Father pay retroactive child support when it would deprive Father's resources that could be used for Daughter. Accordingly, the Tennessee Court of Appeals reversed the juvenile court's decision to have Father pay retroactive child support.

Child support in Tennessee is determined pursuant to the Tennessee Child Support Guidelines.The recent Appeals Court case entitled Crews v. Staggs, 2011 WL 2848745 (Tenn.Ct.App., May 31, 2011) calls into question the relationship between the amount of support and the tax exemption award. This case involved a Primary Residential Parent (hereinafter "PRP") who appeals the trial court's decision to alternate the federal tax exemption for the minor child each year. This decision was made prior to a determination regarding the amount of child support owed each month.

The Juvenile Court of Maury County entered an Order putting the Father's child support obligation at $100.00 every week and giving him the obligation to carry health insurance. A hearing was then held to set the visitation schedule in the parenting plan. At that hearing, the court reserved determination of child support due to the State having filed a paternity action on Mother's behalf. The Parenting Plan did declare that Mother would be the parent receiving support and gave her the tax exemption every year.

Subsequently, and Agreed Parenting Plan was entered with child support and the tax exemption issues reserved. However, the Plan also stated that Father could claim the exemption if payments are current when the return is due. Mother filed an appeal, which was dismissed due to lack of a bond. A third Plan was entered in late 2009 with the same support and tax provisions as the earlier plan.

Father then filed a Motion to change the child's name, remove some of his visitation requirements (overnights at the Mother's home, not his) and to rotate the tax exemption. A hearing was held and the Court refused to change the child's name, allowed the visitation change, and allowed the exemption to be shared. Mother appealed the tax exemption ruling.

Trial courts hold the discretion to set child support and therefore that decision is reviewed with an abuse of discretion standard, as are tax exemption rulings. The Appellate Court held that Tenn. Comp. R. & Regs. 1240-02-04-.03(6)(b)(ii), which describes that the formula used to determine the parties' net incomes assumes that the primary parent will receive the tax exemption, is not a rule, but rather a "mathematical assumption regarding an unrelated matter" (the internal formula used by the child support worksheet). Therefore, trial courts are not required to allow the PRP the tax exemption every year. However, because of the formula, the PRP being allowed the exemption is already calculated into the Worksheet, and therefore its actual allocation should be a factor in the trial court's decision.

The Appellate Court noted that the amount of support paid by Father was set to be recalculated by the State, and therefore until that is completed, the alternating exemption cannot be deemed an abuse of discretion, nor can it be deemed equitable in light of the scarce testimony regarding income at the Juvenile Court hearing. Therefore, the Appeals Court reversed the order awarding the exemption and remanded for reconsideration of that exemption as part and parcel of the as-yet-undetermined child support obligation to be determined by the State.

Whether you are going through a divorce or a custody matter in Tennessee, child support is sure to be a confusing issue for those unfamiliar with the process. For parents of children who were never married, the issues can be even more intricate, especially when dealing with retroactive child support.

The first step is for the court to establish parentage and then set a current child support amount for the obligor to pay going forward. Next, the court must determine the amount of child support arrearages dating back to the birth of the child using the Child Support Guidelines. T.C.A. §36-5-101(e); Tenn. Comp. R. & Regs. 1240-2-4-.04(1)(e).

In T.C.A. §36-2-311(a), the legislature has carved out four instances where it would be unfair or unjust to require the arrearages to reach back to the child's birth. The first is when the father was unaware and could not have known of any of the following: the birth of the child, his potential parentage and/or the child's location; second, if the mother intentionally and with no good cause kept the child's birth from the father, his parentage or the child's location; and thirdly if the mother failed to make any attempts to notify the father of the pregnancy or birth. If these events occur, the court has the discretion to decide that the presumption of arrearages dating back to the birth is overcome. The statute also allows the court to look at the equity between the parties as a fourth safety valve, allowing reasons other than those spelled out in T.C.A. §36-2-311 to be considered in allowing a deviation from the Guidelines. This fourth factor could apply when a parent unilaterally cuts the other parent out of the child's life for no legitimate reason. However, a Mother's failure to legitimate the child, on its own, or the fact that a child was supported by other relatives will not be considered by the court as grounds to overcome the presumption.

In April 2010, Torry Hansen placed her seven year old adopted son, Justin Hansen, on a plane to Moscow with nothing but a note stating that she did not want to be his adoptive mother anymore. She claimed that he was violent and had psychological problems. The child was only in Hansen's care for four months - two months too short to establish Tennessee as the child's home state for jurisdictional purposes.

According to the Shelbyville Times, Russian authorities have stated that Hansen owes them $2,500 per month in child support since the child is now being housed in a Russian orphanage. The Russian authorities filed in Bedford County Juvenile Court stating that they want to wait for Bedford County to rule on the child support claims filed by the adoption agency, World Association for Children and Parents, before they go forward with the case in Russia.

This case presents interesting jurisdictional issues. Hansen's former attorney argued that since Tennessee is not the child's home state and Russia is handling the termination of Hansen's parental rights over the child, Tennessee does not have jurisdiction over the child and therefore cannot make a determination as to child support. The two attorneys for the adoption agencies involved took issue with this argument. They stated, "If an adoptive parent in Tennessee could avoid their child support obligations by placing the child on an airplane to California just four months after they receive custody, then the statutes would be meaningless."

The adoption agencies' attorneys have a very good point. It would appear to completely defeat the purpose of the Tennessee child protection laws to allow a parent to place a lone child on a plane with nothing but a note and be able to avoid any responsibility for that child after he reaches he destination.

When litigation in Tennessee involves either a divorce with children or paternity and/or custody for parents who were never married, eventually the parties end up in a child support hearing. The purpose of this hearing is to determine who has an obligation to pay child support and what the amount will be. In Tennessee courts, the child support Referee, Magistrate or Judge (depending on the county) is obligated to rely upon the Tennessee Child Support Guidelines issued by the Department of Human Services, and found at Tenn. Comp. R. & Regs. §1240-2-4.

These Guidelines have a special provision for "imputing income." This allows courts to assign an income level to a party for the purpose of calculating child support, even though that party may not earn that amount in reality. There are three circumstances where a court is allowed to impute income: when the court finds the party is willfully and/or voluntarily underemployed or unemployed; when the party cannot produce any reliable evidence of income; and if the party has non-income producing substantial assets, the court may impute income determined by a reasonable rate of return on the assets.

To determine if an individual is voluntarily unemployed or underemployed, a variety of factors are used, including: past and current employment; education, training and ability; whether a party acted as a full-time caretaker for children while the parties lived together (which includes the length of time that party remained out of the workforce and age of the children); lifestyle and valuables owned; whether one cared for a handicapped or ill child or parent; whether the lack of work was due to additional training or education; and any other variable the tribunal believes to be relevant. Also, if a parent is in jail, a court may find the parent is voluntarily unemployed.
However, Tennessee courts have added some explanation for when such imputation is appropriate. For example, the Court in Owensby v. Davis, No. M2007-01262-COA-R3-JV, 2009 WL 3295123 (Tenn. Ct. App. Oct. 14, 2009) stated that imputation is not proper when it is found that a party works at a lower-paying job in good faith and for a rational reason. Further, the Court in Wilson v. Wilson, 43 S.W.3d 495 (Tenn.Ct.App.2000) explained that such a finding must result from the party intentionally reducing or terminating their income.

Tennessee courts may also impute income if the party does not produce any documentation of income (paystubs, taxes, etc.) and there is no other reliable evidence of that person's income. In that case, the amount of income assigned to the party is $37,589.00 per year for males and $29,300.00 per year for females.

Therefore, understanding the documentation needed for a child support hearing in Tennessee is very important to your case and could dramatically affect the outcome of the child support obligation.