59 Yr Old TN Father Appeals Willful Underemployed + Private School Tuition

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

Kaplan v. Bugalla – Modify Tennessee Child Support + Private School Tuition

The parties in this case are Brendi Kaplan (“Mother”) and John A. Bugalla (“Father”). The parties were married for over 10 years and have 2 children.  At the time of divorce, Mother was an attorney making $87,000 per year and Father was an executive at Aon making between $279,000 and $350,000 per year. Father’s initial child support payment was set at $4,000 per month in May 2002. This payment did not include private school tuition as Mother planned on moving with children and enrolling them in public school. Mother’s plans to move did not work out and Mother sought an increase in child support to pay for the children’s private school education in September 2002.  In 2003, the trial court denied Mother’s request for private school tuition. Mother appealed the decision and was again denied the private school tuition. In 2005, Mother sought a grant of certiorari. The Supreme Court heard this case on October 5, 2005.  The Supreme Court reversed the decision of the trial court, denying Mother’s request for private school tuition, and remanded it back to the trial court.

Before the Supreme Court’s decision was entered, Father filed a petition to reduce or terminate child support due to the fact Father had lost his job at Aon and had been unable to find employment. Mother filed a counter-petition seeking private school tuition. A hearing was set and subsequently an order was entered on August 2006. The order found the following: (1) Father’s modification of support is denied and that Father is voluntarily underemployed and imputed his income at $29,339 per month, (2) Mother is awarded $9,175 for private school expenses for the 2002-2003, 2003-2004, 2004-2005, and 2005-2006 school years. The amount is proportionate share of he total income of the parties during the 2002-2006 years which was 80.83% Father and 19.17% Mother, (3) Father is responsible for a proportionate share of 78% of the private school expenses for the 2006-2007 school year.

Father filed a motion to alter or amend the judgment. The motion was denied and Father appealed the final order. Father argued that the trial court should have reduced his child support payment as there was a significant variance, he was not voluntarily underemployed, and that the allocation of the private school expenses were in error.

The appellate court used the significant variance requirements under T.C.A. 1240-2-4.05(2)(b)(1) and determined that Father’s change in income from between $274,997 in 2002 and $533,188 in 2005 to his 2006 income of $7,500 following his job loss was a significant variance. However, even if there is a significant variance, it can be negated by underemployment. In determining underemployment, Tennessee law has factors to consider, among the factors are the parents past and present employment, parents education, training, and ability to work, and the parent’s lifestyle. The appellate court in looking at the record, determined that while Father was 58 and only had a high school education, he had extensive experience and contacts in the insurance industry and no evidence of physical or mental disabilities. Father also had limited his job search to only online applications and had not used his contacts to look for employment. Finally, the record showed that Father lives an extravagant lifestyle including driving a two-year-old Mercedes C-240. This evidence supports that the trial court did not error in finding that Father was underemployed. However, the appellate court found the trial court did error in the amount of income imputed. Father’s past income of $29,339 per month does not necessarily correlate with Father’s future earning potential. Father is nearly 60 years old, only has a high school education, and his job termination was due to large changes in the insurance industry. The appellate court remanded the case back to the trial court to determine Father’s earning potential and set the child support obligation based on the this calculated earning potential.

In looking at the private school expenses, the appellate court also found the calculations in error. First, the trial court did not take into account changes in Father’s income, but instead set a set 80.83% of the private school tuition. Second, the 78% of the private tuition for the 2006-2007 school year was based on the improperly imputed monthly income of $29,339. The private school expense determination is remanded and the trial court should first determine Father’s imputed monthly income and Mother’s income to set each parent’s share of the private school payment.

Kaplan v. Bugalla, 2007 WL 4117787 (Tenn. Ct. App. 2007).

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 an attorney today at (901) 683-1850.

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