Swim Instructor Mom Found Voluntarily Underemployed

Tennessee child support case summary on voluntary and intentional underemployment.

Elizabeth Mesmer Cocke v. Thomas Lawrence Hunt Cocke

The father and mother in this Tennessee case were married in 1993 and had two minor children.  At the time of their 2012 divorce, the mother was named the primary residential parent with parenting time split evenly.  The father was ordered to pay $1,270 per month in child support.

By 2014, the older child had become emancipated, and the mother filed a petition to modify the parenting plan and child support.  The mother asked for both parents to split school and extracurricular expenses on a pro rata basis according to their incomes, with the child support obligation increased.  The father also asked for a modification, based upon the son’s emancipation.

At the time of the hearing, the father worked in advertising and earned between $137,000 and $148,000 in recent years.  The mother worked as a swimming instructor and earned $55 per hour, but only about 15-20 hours per week, and only seasonally.  She testified that her part-time employment was a choice she had made.

After hearing the testimony, the trial court found that the father was a “very truthful witness,” but that the mother’s testimony “was not impressive,” in that she remembered things that helped her, but could not remember things that hurt her.

The trial court set the father’s income at $12,416 per month, and found that the mother had the ability to earn $825 per week, plus $1,000 per month she received from her new husband.  Since the child spent 245 days per year with father, the court performed the child support calculations and determined that the mother should pay the father $113 per month in child support, including $11,290 retroactively.

Dissatisfied with this turn of events, the mother appealed to the Tennessee Court of Appeals, which examined a number of the lower court’s findings.  In particular, the mother argued that the trial court erred when it found that she was intentionally underemployed.  The appeals court noted that this question is very fact-driven, and that the lower court is entitled to substantial deference in making this decision.

In making this determination, the court will look to their past employment, and the reason for taking a lower paying job.  If the reason for taking that job is reasonable and made in good faith, then it does not amount to intentional underemployment.

In this case, the mother had testified that she made a choice to work in the lower paying job because it was her “passion” to be a swim instructor.  The court held that, under these circumstances, the evidence did not preponderate against the lower court’s finding.  For that reason, it affirmed.

The father argued on appeal that he should have been awarded his attorney’s fees, but the Court of Appeals agreed with the lower court that an award of fees was not necessary in this case.

For these reasons, the Court of Appeals affirmed, and taxed the costs of the appeal against the mother.

No. M2015-01440-COA-R3-CV (Tenn. Ct. App. Apr. 19, 2016).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Child Support Modification in Tennessee | How to Modify Child Support.

See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring actual examples of parenting plans and child support worksheets from real cases available on Amazon.com.