Tennessee law case summary on child support and income determination for modification in Tennessee divorce and family law from the Tennessee Court of Appeals.
Thomas James Milam, Jr v Donna Lisa Vinson Milam – Tennessee Child Support Income Determination
Donna Milam, Mother, and Thomas Milam, Jr, Father, divorced in August of 1997. The Mother was named primary residential parent of the two minor children. The Father was ordered to pay $4,500 per month in child support. He was also required to pay $2,500 per month in rehabilitative alimony for 48 months. In 2000, the Father filed a petition to modify the child support, which was denied by the trial court.
In June of 2010, the Father filed a petition for modification of support and for criminal contempt. He alleged his gross monthly income had decreased as a result of a pay off agreement concerning his place of employment. He wanted the child support payments reduced to $2,182 per month. He also alleged the Mother was in contempt due to failing to return the children in a timely fashion on May 8, 2010. The mother filed a motion to dismiss and the trial court denied it. The Mother and Father then filed various motions related to discovery including a protective order, which was granted by the court.
A hearing was held in November of 2010. In December, while the matter was pending, the Father’s attorney sent a notice that the Father had obtained employment and noted the anticipated salary. In January of 2011, the trial court ruled the Father’s child support should be reduced to $1,980. However, it stated an upward deviation of $520 was warranted. This brought the payment to $2,500. It also made this award retroactive, which led to a judgment of $16,000 against the Mother.
The Mother appealed this decision. She took issue with the decrease in the child support obligation stating that the trial court erred in making its calculations by erroneously calculating the parties’ income and number of parenting time. She stated that the court failed to apply the Hardship Provision to deny Father any reduction.
To make such a modification, Tennessee law states that the trial court must determine whether a significant variance existed between the guidelines and the amount of support owed. The trial court found the Father’s income decreased from $700,000 per year in 1997 to $350,000 per year over the three years prior to the hearing. The trial court held this to be a significant variance warranting modification.
One factor was the calculation of the Mother’s income, which the Father states is the result of the Mother being willfully underemployed. She works as a registered nurse for 30 hours per week at NHC Place in Cool Springs earning close to $35,000 per year. The court held that the mother was earning less than she is capable and that she is capable of earning $50,000. The appeals court verified, because the Mother did earn more previously and could be working at a higher paying job, that the Mother was in fact underemployed.
In the determination of the Father’s income, $210,000 in 2010 was less than at the time of the child support award. It noted the Father would reach retirement age and had health concerns. The trial court did not take into account his earning potential. It determined the Father has the ability to earn $23,416.66 per month in gross income and used that information to determine child support. The appeals court determined that, with additional income earned for part-time lobbying activities, remuneration for unused vacation days, the Father earned $24,858.67 per month, and his 2010 income was $298,304.64. It stated the trial court failed to consider all sources of his income.
As a result, the appeals court vacated the court’s modification of child support and the judgment against the mother. It remanded the case to the lower court for redetermination.
No. M2011-00715-COA-R3-CV – Filed May 17, 2012.
See original opinion for exact language. Legal citations omitted.
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