Truck Driving TN Dad’s Income Based on Potential Not Actual
Tennessee law case summary on income potential in Tennessee child support, divorce, and family law from the Tennessee Court of Appeals.
Emison v. Emison – Tennessee Child Support Laws
Randy Emison appealed the judgment of the trial court granting an absolute divorce to Tamara Emison. The parties were married on July 12, 1985, and there were two children born of this marriage. Mr. Emison had one previous marriage, and Mrs. Emison had not been married prior. The appeal concerned the division of property, allocation of marital debts, alimony, child support, and life insurance as security for child support.
Mrs. Emison filed her complaint for divorce in September 1997 on the grounds of irreconcilable differences and inappropriate marital conduct. She claimed that from the time that Mr. Emison began an extra-marital relationship with a woman in January 1996, he began transferring assets from himself to his father, brother, and step-mother. Mr. Emison admitted to the extra-marital affair from January to September of 1996, but asserted that Mrs. Emison discovered the affair in October 1996, about a year before filing for divorce. Mr. Emison contended that he admitted to the affair and that the parties subsequently continued a physical marital relationship. Further, Mr. Emison said that they went to counseling; and that, although Mrs. Emison denied that the reason she wanted a divorce was because Mr. Emison did not make enough money, she claimed to have forgiven him for the affair. The Emisons separated on September 21, 1997.
From the beginning of the marriage through February of 1997, Mr. Emison was a self-employed truck driver, then went to work for his brother. At the time of trial Mr. Emison testified that he worked for his stepmother making $410 a week, and that his monthly expenses were about $2,100. Mr. Emison’s tax returns indicated that his income was $54,059 in 1994, $41,715 in 1995, and $29,755 in 1996. Mr. Emison attributed his loss of income to the sale of his truck to his brother for $19,500 in March of 1997.
After a non-jury trial, the trial court awarded Mrs. Emison a divorce on the grounds of inappropriate marital conduct. The court found Mr. Emison to be underemployed and ordered child support of $192 per week. The trial court ordered Mr. Emison to pay $900 per month in child support based on his last reported income of $40,000 in 1983, his educational level (high school), and his annual income from rental properties.
On appeal, Mr. Emison claimed that the trial court erred in setting the child support in the weekly amount of $192, and asserted that when the costs of operating his trucks was considered, his reported income was not nearly as great as it appeared on paper. Mr. Emison argued that evidence offered by Mrs. Emison inflated his income by including the depreciation taken on the equipment. Nonetheless, the court of appeals agreed with Mrs. Emison that according to the child support guidelines, depreciation was not considered a reasonable expense.
The appellate court addressed the contention that Mr. Emison transferred assets to other family members to intentionally lower his reported income. Mrs. Emison asserted that he had been self-employed from the beginning of the marriage until March of 1997, when he began to work for his brother; and that, after transferring his truck to his brother, the truck earned $76,000 in 1997. This was the same type work performed while Mr. Emison owned the truck. Mrs. Emison claimed that in November of 1997, Mr. Emison represented to the trial court that his income was about $1,800 per month, while in July of 1997 he signed a business loan agreement with a bank stating his income at $4,200.
Mr. Emison asserted that the award to his ex-wife was $105,400, and the award to Mr. Emison was a negative $29,244.39. Mr. Emison disputed his ex-wife’s assessment as to the value of the shop equipment at $15,000 because she had no actual knowledge of its fair market value, and claimed that the value of the shop equipment was $225. Testimony at the trial showed that the value of the shop equipment was based on Mr. Emison’s statement to her when they insured the shop. However, since the value of assets was a question of fact, the presumption on appeal was that the trial court’s valuation was correct. Despite Mr. Emison’s sale of his truck to his brother and his decreased income, the court of appeals agreed with the trial court that he was underemployed. The appellate court further explained that even if the trial court’s award was made from future earnings, it believed that these circumstances fell within an exception because evidence indicated that Mr. Emison intentionally disposed of assets in order to deprive Mrs. Emison of support. Mrs. Emison testified at trial that she thought he was hiding money in his father’s safe.
Based on previous court of appeals decisions, this court said that the trial court erred in not making a specific determination as to Mr. Emison’s monthly income potential and in setting the child support obligation. As a result, the case was sent back to the trial court for a determination of Mr. Emison’s monthly income potential, but the child support amount was to remain the same.
Emison v. Emison, 1999 WL 1336054 (Tenn.Ct. App. 1999).
See original opinion for exact language. Legal citations omitted.
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