Dad Not Voluntarily Underemployed Leaving Lucrative Oil Job in Angola

Tennessee child support case summary on income determination and voluntary underemployment.

In this Lewis County, Tennessee, divorce case, the trial court in 2012 entered a permanent parenting plan naming the mother the primary residential parent of the parties’ daughter, who was eleven years old at the time. The mother was granted 285 days per year of parenting time, with the father receiving 80 days of parenting time. The father’s income was about $12,000 per month, and he was ordered to pay about $1200 per month in child support, since the mother’s income was considerably less.

In 2013, the father came back to court asking for a change in the parenting plan based upon what he believed to be changed circumstances. In particular, he argued that the mother failed to properly supervise the daughter, particularly with respect to schoolwork and social media use. He also argued that the mother purposely tried to make visitation difficult. In 2014, the father moved to modify the child support obligation, on the grounds that his income had decreased considerably.

The father had served in the Marine Corps from 1998 until 2003. After being involved in a motor vehicle accident, he testified that he was diagnosed with PTSD. After service in Afghanistan, he was again diagnosed with PTSD, and received services from the VA starting in 2013.

At the time of the divorce, the father had been working on an oil rig off the coast of Angola, Africa. He testified that the work was physically and mentally strenuous, as well as dangerous. He asked for a transfer, but the new job was even more grueling, and he suffered from physical limitations from his shoulder and back.

He then got a job as a maintenance repairman in Pennsylvania, earning about 1200 per month. He testified that he had applied for more lucrative positions, to no avail.

The trial court did not change the parenting plan, but did agree that the child support obligation should be reduced. Despite the mother’s claim, the trial court specifically found that the father was not voluntarily unemployed. The father then appealed to the Tennessee Court of Appeals with respect to the parenting plan ruling. The wife also argued that the trial court should have found him voluntarily unemployed.

The appeals court first held that the trial court had acted properly with respect to the custody issues, and affirmed the finding that no change to the parenting plan was warranted. It then turned to the issue of voluntary underemployment.

On this point, the mother argued that the trial court’s ruling was flawed in that it relied upon inadmissible medical evidence. Since medical records do not involve in-court testimony, they can be considered hearsay evidence. However, there is an exception for statements made to a doctor for purposes of medical treatment or diagnosis. The father argued that the disputed records were properly admitted under this exception to the hearsay rule.

The appeals court agreed with the mother that there might have been errors in the manner in which the records were received and used in evidence. However, it also examined the record and held that the trial court had not unduly relied on this evidence in finding no voluntary underemployment. The appeals court noted that the record was replete with other evidence that the father suffered from physical and emotional limitations that limited his employment prospects. Also, there was considerable evidence that the father had sought more lucrative employment.

Therefore, the Court of Appeals agreed that the trial court had not erred in making its finding, and agreed with the holding of no voluntary underemployment. For these reasons, the court affirmed the lower court’s judgment.

No. M2015-01779-COA-R3-CV (Tenn. Ct. App. Oct. 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.