TN Dad Fired and Jailed Leaving Job at Country Club Not Underemployed
Tennessee child support law case law summary on voluntary underemployment from the Court of Appeals.
France Isabelle Ter Weele Wine vs. Jeffrey Michael Wine – Tennessee child support modification
The Father, Jeffrey Michael Wine, went from earning $80,000 per year at the time he signed the “Marital Dissolution Agreement” to a loss of employment two weeks prior to entry of the “Final Decree of Divorce,” to a month in jail for theft of property. Upon his release, the Father filed a petition against the Mother, France Isabelle Ter Weele Wine, to reduce his child support obligation for the Parties’ three, young children.
The Father had been employed as General Manager of the Old Natchez County Club. The Mother was a homemaker. The Father’s original child support obligation was $2,000 per month pursuant to the Tennessee Child Support Guidelines.
While the modification case was pending and after months of unemployment, the Father began working at a restaurant owned by his new wife, earning $35,000 per year. Just before the scheduled hearing, the Father remitted $17,000 in cashier’s checks for past due child support and alimony.
Only the Parties testified. The Father testified as to his unsuccessful efforts to obtain similar employment at another country club. On the advice of his attorney, the Father pled the Fifth Amendment to any questions regarding what precipitated being fired. Although the criminal indictment was introduced, it amounted to an allegation of wrongful conduct, not proof of whether the Father was actually guilty of conduct that warranted being fired from his job.
The Mother stipulated that a calculation of child support upon the Father’s current restaurant income would constitute a “significant variance” of a change in child support greater than fifteen percent. The Mother tried to hang her argument on the Father’s earning capacity and that he had lost his job because of his own conduct, either of which argument could have resulted in a denial of the requested modification of child support.
While the trial court supported the Mother’s claim, it did not do so correctly, and the trial court was reversed by the Court of Appeals. The case was remanded to set child support pursuant to the Tennessee Child Support Guidelines based upon the Father’s current (restaurant) income.
The logic of the Court of Appeals was technical, pivoting on which Party had the burden of proof at what point in the proceeding. The Father had the burden to file the petition to request the downward modification, which he did. Then, the Father had to demonstrate that there was a “significant variance” between the existing child support order and a current computation of child support, which he did and which the Mother agreed exceeded the minimum fifteen percent difference.
But, where the trial court went wrong according to the Court of Appeals, was failing to have the Mother prove her allegation that the income reduction was “the result of willful or voluntary underemployment.” The difficulty for the Mother in this case was relying upon only the Father’s direct testimony and cross-examination to set forth what had happened to cause him to lose his job. Without an admission of willful misconduct on the job by the Father, the Mother was unable to establish the truth of her allegation.
No. M2006-00855-COA-R3-CV (Tenn. Ct. App. May 18, 2007).
For more on voluntary underemployment, see Voluntarily Unemployed or Underemployed in Tennessee Child Support Law.
See original opinion for exact language. Legal citations omitted.
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