Tenn. Trial Lawyer Father’s Child Support Income Based on Disability

Tennessee child support law in Tennessee family law from the Tennessee Court of Appeals.

Turner v. Turner – Child Support Income Determination for Disabled Trial Lawyer

Ginger and Robert Turner, Jr. were married in 1980.  Mr. Turner was a trial lawyer, and Ms. Turner was a college graduate who had worked for several Nashville companies.  After getting married, Ms. Turner worked in Mr. Turner’s law office until their first child was born in June 1985. Their second child was born in February 1988.

The court of appeals described the marriage as troubled from the beginning.  Mrs. Turner left Mr. Turner for three periods during the marriage.  Subsequently in April 1991, she and the children left home and moved into a domestic violence shelter.  One week later, she filed a complaint for separate maintenance and also sought and obtained a temporary restraining order to prevent Mr. Turner from harassing or threatening her or interfering with her custody of the children.  Mr. Turner was hospitalized and treated for severe depression and other problems. The parties attempted to reconcile after Mr. Turner returned to Nashville, but five weeks later, Ms. Turner and the children moved into a one bedroom apartment attached to her parents’ home.

The litigation was drawn out and difficult with the most serious disputes centering on the custody of the children and the division of the marital property.

In what the appellate court described as an “extraordinary” letter to the Turners and their lawyers in October 1992, their three therapists noted that the “present situation has many of the hallmarks of the murder-suicide syndrome” and they strongly recommended that the two should “appear in each other’s presence only when there are others present to buffer the intensity of your present feelings.”  They also recommended that Mr. and Ms. Turner seek the services of a divorce mediator for the well-being of the children.

In April 1993, Mr. Turner’s physician certified that he was disabled from practicing as a trial lawyer because of his obsessive-compulsive personality and his depression.  Accordingly, in July 1993, Mr. Turner’s disability insurance carrier began paying him benefits amounting to approximately $12,000 per month, and his efforts since that time to establish an office practice were unsuccessful.

The trial court held a hearing in late December 1993, concerning fault, custody and visitation, and child support.  The court filed a memorandum opinion awarding Ms. Turner a divorce on the ground of inappropriate marital conduct.  Noting that the “children need a safe haven where they are out of the battlefield,” the trial court gave Ms. Turner sole custody of the children and defined a specific visitation schedule for her ex-husband.  Rather than making a final determination on spousal and child support, the trial court entered an order for temporary support, directing Mr. Turner to pay his ex-wife $3,500 per month for alimony and child support and permitting Ms. Turner to withdraw approximately $28,500 from Mr. Turner’s cash account.

The trial court held further evidentiary hearings in August of 1994, and ordered Mr. Turner to pay $2,000 in monthly child support and to pay an additional $1,500 per month into an educational trust fund for the children.

Finally, the trial court directed Mr. Turner to submit a copy of his disability insurance policy and prohibited him from informing his disability carrier that he intended to resume working as a litigator until he was established in a practice. The trial court also directed him to provide his lawyer with copies of any responses to the disability carrier’s inquiries regarding his future career plans and ordered Mr. Turner’s lawyer to seek court approval of the response if necessary.

Mr. Turner argued that the trial court mistakenly calculated his child support obligation by failing to consider him as self-employed and by failing to deduct his claimed business expenses from his disability insurance income.  The appeals court determined that the trial court was not required to deduct business expenses from the payments he received from his insurance.

Mr. Turner asserted that the order interfered with his contractual obligations under the disability policy.  Mrs. Turner insisted that the restrictions prevented her ex-husband from retaliating against her and their children by cutting off the only source of support.  The court of appeals determined that the trial court’s restrictions should be modified.

Mr. Turner had earned no income from the practice of law since 1990.  His law practice was at one time very successful, but it declined dramatically right before the Turners separated in 1991.  His business income in 1987 was $185,872, and $249,654 in 1988.  In 1989, Mr. Turner’s business income slipped to $35,647, and by 1990, his expenses exceeded his receipts by $27,091.  Mr. Turner kept his office after he was declared disabled but essentially performed no legal work and received virtually no income from practicing law since 1991.

According to the opinion written by the court of appeals, the trial court properly determined that Mr. Turner’s disability benefits should be treated as gross income for the purposes of the child support guidelines.  While these benefits are not specifically included in the guidelines’ definition of gross income, the appellate court believed them to be similar to other types of disability income that are specifically included.  Based on the guidelines’ requirement that he pay 32% of his gross income as child support, the court of appeals concluded that the trial court acted appropriately when it ordered Mr. Turner to pay $2,000 in monthly child support and to deposit $1,500 each month in an educational trust fund for the children. The trial court also included proper safeguards permitting the modification of either or both of these amounts in light of the uncertain future of Mr. Turner’s disability insurance benefits.

Mr. Turner’s statements about his desire to resume litigating presented the trial court with a dilemma. On one hand, all the available medical evidence and Mr. Turner’s own unsuccessful efforts, indicated that he was incapable of maintaining a successful litigation practice, but conversely, an independent psychiatrist told him that his prognosis for a full recovery at some future time was good. The trial court properly took steps to guard against the premature, unwarranted end of Mr. Turner’s disability benefits. Nonetheless, it should have balanced his obligation to cooperate with his disability insurance carrier with Mrs. Turner’s justified concern that Mr. Turner might jeopardize his only source of income simply to retaliate against his family.  Any judicial supervision of Mr. Turner’s dealings with his insurance carrier should have taken into account that he was not entitled to receive disability benefits if he was no longer disabled.  Mr. Turner’s policy defines disability in terms of inability to perform the substantial and material duties of his occupation, not in terms of income earned.  As a result, it was possible that Mr. Turner would not be considered disabled under his policy if he resumed his litigation practice but failed to generate income commensurate with his disability benefits.  After all, the court of appeals reasoned, it was reasonable to expect Mr. Turner to require some time to rebuild a litigation practice after his extended absence.

The court of appeals found that the trial court erred by equating Mr. Turner’s disability to practice as a litigator with his ability to earn income. Accordingly, the court of appeals ordered the October 1994 order to be modified by omitting the restriction against Mr. Turner advising his disability insurance carrier of his plans to resume his litigation practice “until he has established a trial practice.”  Instead, the trial court was directed to require Mr. Turner to notify both the court and Mrs. Turner before he informed his disability insurance carrier that he was no longer disabled.  Upon receipt of this notice, the trial court had the authority to conduct a hearing—either on its own motion or at Ms. Turner’s request—concerning Mr. Turner’s disability status.  He had the burden of proving he was no longer disabled—with that burden, the trial court was required to allow him to notify his insurance carrier of the fact that he was no longer disabled.  If he failed to satisfy the trial court that he was no longer disabled, the court had the option of enjoining him from informing his carrier of that fact.

Turner v. Turner, 1997 WL 136448 (Tenn. Ct. App. 1997).

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. See our Consultation and Fees page and call 901-683-1850.


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