Mom Claims Delta Pilot Is Underemployed for TN Child Support

Tennessee law case summary on child support modification and income determination in Tennessee divorce and family law from the Tennessee Court of Appeals.

Narus v. Narus – Tennessee child support modification and income determination law – claims of voluntary underemployment

Joseph Narus, Jr., a commercial airline pilot, filed a petition to reduce his child support obligation.  After a hearing, the trial court reduced the amount of his obligation, and Mrs. Narus appealed.  Mrs. Narus raised issues of whether the trial court erred when it refused her request to discover Ms. Narus’s non-income-producing assets and the canceled checks on his checking account.

The parties were married in May of 1977 and had one child in 1980. The marriage was dissolved in December of 1985.  In December 31, 1996, Mr. Narus filed a petition in which he stated that he planned to retire effective January 1, 1997.  Following a hearing in November 1997, the trial court found that Mr. Narus’s gross monthly income for the year 1997 was $8,300, and determined that his gross monthly income beginning January 1, 1998, would be $6,300. The court of appeals wrote that if it is assumed that the income figures were correct—to which Mrs. Narus strenuously argued that they were not—it was undisputed, in the appellate court’s view that the trial court correctly calculated the amount of support in accordance with the Child Support Guidelines.

On appeal, Mrs. Narus argued that the trial court failed to properly apply the Guidelines to the facts of the case, contending that:  (i) Mr. Narus was voluntarily unemployed, and that this fact mandated that his income, for child support purposes, be based upon his “potential income,” as mandated by Tennessee Regulations; (2) in the alternative, that Mr. Narus’s child support obligation should have been based on a gross monthly income of $9,900, which is the amount he could have elected to receive under a different retirement option; (3) that the trial court should have included dividend and interest income on his retirement accounts in calculating his income, even though he was not presently drawing down that income; (4) that the trial court erred when—”so the argument goes”—it allowed Mr. Narus to reduce his gross rental income by the full amount of his mortgage payments in arriving at his net income from these rentals; (5) that the trial court erred in failing to consider interest income from investments as reflected on Mr. Narus’s 1996 income tax return; and finally, (6) that the trial court should have included in his income the rental income received by his present wife.

Because of health problems, Mr. Narus had been contemplating retirement since 1993. Meanwhile, his union negotiated with Delta an early retirement program where pilots eligible for retirement would receive significant retirement “perks” by retiring in advance of the federally-mandated retirement age of 60.

On the issue of Mr. Narus’s voluntary unemployment, Mrs. Narus correctly pointed out that an individual who is prohibited by federal law from serving as a commercial pilot (as a captain or first officer) is able to apply for employment as a second officer with seniority based upon all years of service with Delta.  This fact was acknowledged by Mr. Narus, but he pointed out that this type of employment was subject to an available vacancy.  The court of appeals said that the availability of a second officer position was not critical to its determination.  Mr. Narus chose to retire from the work that he had pursued all of his post-military adult life.  He made this choice after 34 years of steady employment, and it was a decision that he made at a reasonable retirement age—10 months shy of his 60th birthday.  Mr. Narus chose to leave shortly before the federally-mandated retirement age because of fringe benefits that would accrue to him and his daughter because of the union-negotiated program.  Even so, his decision impacted only the final 17 months of the period of time for which his daughter was entitled to child support.  The evidence did not weigh against the trial court’s finding that Mr. Narus was not voluntarily unemployed.  Instead, evidence showed that he chose retirement at a reasonable age, based upon legitimate reasons, and at an income level that enabled him to significantly contribute to his daughter’s support during the short time before she reached age 18.

At the time of his retirement, Mr. Narus was eligible under Delta’s retirement plan to accept one of several retirement options.  As Mrs. Narus pointed out, he could have chosen an option that would have paid him $9,900 per month; however, that option did not provide a benefit at his death for his designated beneficiary.  That option would also have adversely impacted his ability to roll-over dollars from his 401(k) account to an IRA.  As a result, the court of appeals believed that Mr. Narus chose an option that paid him a gross monthly pension of $6,000 with a survivor’s pension for his designated beneficiary (his present wife).  The appellate court found and held that Mr. Narus made a legitimate and reasonable election from several options, and that there was no basis under the Guidelines for assuming a larger monthly pension for the purpose of setting his child support obligation.  The child support guidelines, the appellate court explained, cannot be interpreted in a manner as to force an individual to select a retirement option that is clearly at odds with the long-term best interests of himself and his wife in order to increase his daughter’s child support entitlement for 17 months.

As another portion on this issue, Mrs. Narus argued that the trial court should have included in Mr. Narus’s projected income, dividends, and interest on his IRA.  The court of appeals did not agree.  Mr. Narus testified that he was not presently withdrawing funds from his IRA. In the facts of this case, the court of appeals found it immaterial that Mr. Narus was age-eligible to make withdrawals without penalty when he was not making withdrawals; as such his IRA income was not a part of his spendable income.  In court’s judgment, the definition of income—and specifically the references to “dividends” and “interest” in that definition—are not intended to include income on an IRA that has not been taxed when it has yet been withdrawn.

The appellate court also disagreed with the remaining assertions in Mrs. Narus’s first issue. The evidence does not hold any value against the trial court’s decision that Mr. Narus’s annual rental income was $300.  Mr. Narus testified to that fact, and his testimony was accredited by the trial court. Such a determination is entitled to great weight on appeal.

Mrs. Narus also argued that the trial court erred when it limited her request for a listing of all of Mr. Narus’s assets to those which are income-producing.  She also complained that the trial court erred when it refused to order Mr. Narus to produce his canceled checks.  The trial court did not abuse its discretion, said the court of appeals, in that non-income-producing assets and canceled checks were not relevant to the issues before that court.  The question to be determined was related only to Mr. Narus’s income—not to the non-income-producing assets he had accumulated, or to the way in which he spent his money.

Based on this reasoning, the court of appeals affirmed the findings and decision of the trial court.

Narus v. Narus, 1998 WL 959839 (Tenn. Ct. App. 1998).

See original opinion for exact language.  Legal citations omitted.

Memphis divorce attorney, Miles Mason, Sr., JD, CPA, practices family law exclusively with the Miles Mason Family Law Group, PLC. To learn more about Tennessee child support laws and guidelines, read and view:

A Memphis child support attorney from the Miles Mason Family Law Group can help you with Tennessee child support issues including setting or modifying child support. Contact the Miles Mason Family Law Group, PLC at 901-683-1850.

Topics

Copyright © 2024 Miles Mason Family Law Group, PLC   - Disclaimer