Husband Must Pay $20K for Assault + Found Voluntarily Underemployed

Tennessee case summary on damages for domestic violence in divorce and voluntary underemployment.

Cynthia M. Kanka v. Christopher Kanka

The husband and wife in this Marshall County, Tennessee, case had been married for 24 years when the wife filed a complaint for divorce.  Her complaint also included a claim for tort damages based on her allegations of domestic abuse.  She also requested an order of protection.  The parties had one daughter, who was sixteen at the time of filing.  Simultaneously with the divorce action, the state filed a petition in the juvenile court.  In that action, the wife was granted custody, and the husband was enjoined from having contact.

The trial was held in 2016.  The wife testified that the husband engaged in violent behavior, such as breaking dishes, shoving, insults, and shaking his fist in her face.  On one occasion, the husband head butted the daughter, and when the wife intervened, he punched her hard enough to break a rib.  When the wife confided in a neighbor, the Department of Children’s Services became involved, and the wife and daughter received counseling.

The husband denied the abuse allegations.  When the protective order was issued, he moved in with his parents in Alabama.  His work began to suffer, and he testified that he had anxiety attacks.  When he spoke to his employer, he was offered a severance package, which he accepted.  He moved to Detroit, where he lived rent free with a female friend.  He eventually found a job paying about $2,000 per month, less than his estimated living expenses.

The trial court granted the wife a divorce.  The trial court ruled that the husband’s testimony was not credible, but credited the wife’s testimony.  The wife was named the primary residential parent, and ordered the husband not to have contact without making a petition with the court.

The court ruled that the husband was voluntarily unemployed, since he had given up a job earning $7,000 per month with GM.  Based upon his earning capacity, the husband was ordered to pay $1,175 per month in child support.

After dividing the property, the court turned to the tort claim.  It found that the wife had proven her case, ordered the husband to reimburse the cost of counseling, and awarded $20,000 for the pain and suffering of the wife and daughter.

The husband appealed to the Tennessee Court of Appeals, raising numerous issues, including the finding of voluntary underemployment and the tort damages.

On the subject of underemployment, the appeals court first noted that such a finding is entitled to a presumption of correctness.  The first test is whether the choice to leave was voluntary or involuntary, after which the court considers the conduct after leaving.

The husband had testified that the decision to leave was not voluntary, because he believed his job was in jeopardy.  But the trial court found that this testimony was not credible, and the appellate court found no evidence to counter this finding.

The appeals court also agreed with the lower court that the husband hadn’t made a good faith effort to find a new job.  His severance package, for example, included placement services, but the husband delayed the search process and made only minimal efforts to find a new job.  For this reason, the Court of Appeals affirmed the lower court’s finding as to the husband’s earning capacity.

After addressing other issues, the Court of Appeals turned to the tort claim.  It noted that the wife had sued for assault, battery, and intentional infliction of emotional distress.

After examining the evidence, the appeals court agreed that the wife had proven her case.  However, it did find that the trial court had erred in awarding the wife damages for injuries to the daughter.  It ruled that the daughter would need to bring this claim as a separate action.

For these reasons, the Court of Appeals affirmed, subject to this modification.

No. M2016-01807-COA-R3-CV (Tenn. Ct. App. Jan. 25, 2018).

See original opinion for exact language.  Legal citations omitted.

To learn more, see The Tennessee Divorce Process: How Divorces Work Start to Finish.