White v. Miller

• Docket Number: M2021-01189-COA-R3-JV
• Decision Date: 31 July 2023
• Parties: MAZIE F. WHITE v. THOMAS GRAY MILLER
• Court: Tennessee Court of Appeals

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MAZIE F. WHITE v. THOMAS GRAY MILLER

No. M2021-01189-COA-R3-JV

Court of Appeals of Tennessee, Nashville

July 31, 2023

Session December 7, 2022

Appeal from the Juvenile Court for Williamson County No 39098-2019-PAT-19 Sharon Guffee, Judge

The trial court found Father to be willfully underemployed and imputed income to him for calculation of child support. Mother appeals the juvenile court's determination arguing the trial court erred as to the amount of income imputed to Father for the purposes of setting child support and also as to its determination of the amount of retroactive support. We affirm the trial court's income imputation. However, we conclude the trial court erred in its calculation of retroactive support owed by Father. Therefore, this Court affirms the judgment of the trial court in part and reverses in part.

Tenn R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part; Reversed in Part; Case Remanded

Elizabeth S. Russell, Franklin, Tennessee, for the appellant, Mazie F. White.

Sarah Richter Perky, Nashville, Tennessee, for the appellee, Thomas Gray Miller.

JEFFREY USMAN, J., delivered the opinion of the court, in which ANDY D. BENNETT, and W. NEAL MCBRAYER, JJ., joined.

OPINION

JEFFREY USMAN, JUDGE

I.

This appeal centers upon the amount of income imputed to a willfully underemployed parent in determining child support. Maize F. White (Mother) and Thomas Gray Miller (Father) had a brief relationship. Mother discovered that she was pregnant in February 2018 and informed Father. The two were not married. Their Child was born in October 2018.

Mother maintained physical custody of the Child but allowed Father visitation. She provided for the Child's needs and his care. Father sent Mother a total of $37 dollars in child support between the Child's birth in October 2018 and February 2019. In February of 2019, Mother filed a Petition to Establish Paternity and to Set Child Support (the "Petition").

Beginning in March 2019, Father began paying Mother $300 every other week as child support. In June 2019, Father filed a Voluntary Acknowledgment of Paternity and took a DNA test establishing himself as the Child's father. Father continued to pay child support to Mother in the amount of $300 every other week until the parties participated in voluntary mediation in August 2019.

As a result of the voluntary mediation in August 2019, Father began paying Mother $1,400 per month in child support. After a November 2020 hearing, the trial court continued the child support at a rate of $1,400 per month and entered a graduated visitation schedule. The trial court set Mother's Petition for trial in February 2021.

At trial, both Mother and Father testified. Mother has a high school diploma and one year of college education. She works as a patient service specialist at Vanderbilt Children's Hospital. Mother makes $26,032 per year and provides health, dental, and vision insurance for the Child at the cost of $125.93 per month. Her income has remained consistent throughout these proceedings. Mother is currently in school to become a licensed massage therapist.

Mother has been the primary caregiver for the Child since his birth. Until the Child was six months old, while Mother was at work, the Child stayed with Mother's friends and family. After that, Mother placed the Child into daycare, the costs of which have varied but remained around $1000 a month.

Father has three sources of money to support his livelihood: work, investment accounts, and his parents. Father graduated from Elon University with a bachelor's degree in Business Administration in 2016. Since then, Father has worked in a variety of jobs including in customer service at Top Golf, as a driver with Lyft, as a booking agent for Stewart Entertainment Agency, as an assistant coordinator with Dead Horse Branding, and in a sales position with Total Quality Logistics. At the time of trial, Father's only occasional employment was in an event-related position with the Nashville Predators.

In addition to his limited employment income at the time of trial, Father also has an investment account with Wells Fargo funded with money received from his family. Father receives dividend payments from the Wells Fargo account that he reinvests into the account. Father's investment account has increased with gains in 2019 and 2020. In 2019, Father's account increased from approximately $240,000 to $305,000. In 2020, Father's account increased to approximately $345,000.

Father also receives money from his parents directly and indirectly, for example, through paying various bills and financial obligations for him. Father testified that he entered into a Secured Promissory Note with his parents that his parents would pay the $1,400 child support payment, his attorney's fees, and other costs associated with these proceedings. Father testified that the Promissory Note is indefinite in that his parents will pay child support on his behalf as long as he must pay child support for the Child. The note is due in full on August 16, 2025; however, he has no obligation in the meantime to make any payments on the note.

In addition, Father's parents pay for his cell phone and car insurance. Father's parents provided him with a 2016 Toyota 4Runner when his previous vehicle stopped working in 2019. Father's residence is owned by a family friend. He testified that he pays $950 in rent per month, including utilities. However, Father's bank statements reflected that he paid rent in some months but not others. Father indicated that paying rent was also included in the Promissory Note with his parents, but he could not point out where in the Promissory Note this was stated. Father testified that he pays minimal amounts for any household expenses each month, approximately $200-250 for groceries, $50 to $75 for eating out, and $10 for a gym membership. Father did acknowledge that he receives money on a regular basis from his parents, noting, for example, that he received $6,500 in 2019.

In 2018, Father made $18,991 in gross income from work and capital gains. In 2019, Father made $45,686 in gross income from work and capital gains. In 2020, Father made $495 from Stewart Entertainment, $1,613.65 from Dead Horse Branding, $2,028.26 from work with the Nashville Predators, and $18,398.21 from Total Quality Logistics. At the time of the hearing, Father was only continuing in his occasional event-related work with the Nashville Predators for $13 dollars an hour. The testimony at trial established that Father's lifestyle did not correspond with his earned income.

The trial court ruled that Mother would have primary custody of the Child and Father would have 85 days of parenting time. The Court also found that "Father is willfully underemployed" and imputed to him an income of $60,000 per year, resulting in a $1,423 per month child support obligation for Father. The trial court ordered retroactive child support to be paid by Father for the time period from October 2018 through February 2019 at the current rate of $1,423 per month for a total retroactive support obligation of $7,115. The trial court concluded that each party would be responsible for his or her own attorney's fees.

In considering Father's income and the amount to impute, the trial court stated the following:

[L]et's go to Father's actual proof of his income and where the biggest argument probably is. The Court has to consider for income all sources from wages to commissions to income from self-employment, interest income, dividend income, net capital gains, and gifts and those gifts can be what reduces a parent's living expenses....

In the Court's estimation, one would have to earn more money than what Father's earning to live at the standard at which he's living. For the standard at which he's living, he would not be able to live at that standard at just 18 some-odd thousand dollars that he made in '18. He would not be able to live at that standard at the, closer but not quite, at the $45,000 he made the previous year.

So let's go to investment income. The Court does look at dividends, the Court looks at capital, net capital gains, or capital gains. And there's a summary that was submitted by [Mother's counsel] that the Court looked at. And I understand where [Mother's counsel] gets what she labels as Wells Fargo Net Capital Gains.

Looking through all the different summaries and then looking to the other evidence, the Court doesn't agree with what [Mother's counsel] has submitted in terms of what Father's net capital gains are. That is labeled in the summary as . . . Change in Value. However, the best evidence the Court has is to look at what Father submitted to the IRS as capital gains; one year it was $14,265, that was in 2019 and then in the next year it was $35,206.

The best way for the Court to put the child in the position and the child's best interests for [the] child to have the support that it needs is to find that Father could gain an income of $60,000. That fits with Father's lifestyle, that fits with basically what he is earning when he does have a job and then what he is drawing out from his investment accounts and also what he's receiving in gifts from the parents from time to time and it also fits with what Father would likely have to make if he were paying all of his bills living where he's living in order to do what he's doing....

[T]he Court is going to find that Father makes $60,000 a year, that going to break down to $5,000 a month, the Court finding that Father is willfully underemployed. It's in the child's best interest that the Court deviate child support from what was in terms of his income. What was recommended in the proposed child support worksheet from [counsel

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