Thus, evidence of the obligor parent's intent to avoid support obligations is not required in order to substitute potential income for actual income. See Garfinkel v. Garfinkel, 945 S.W.2d 744, 748 (Tenn.Ct.App. 1996); Anderson v. Anderson, No. 01A01-9704-CH-00186, 1998 WL 44947 at *4 (Tenn.Ct.App. Feb. 6, 1998) (no Tenn. R. App. P. 11 application filed) (citing Ford v. Ford, No. 02A01-9507-CH-00153, 1996 WL 560258 at *3 (Tenn.Ct.App. Oct. 3, 1996) (no Tenn. R. App. P. 11 application filed)). If an obligor is willfully and voluntarily unemployed or underemployed, child support shall be calculated based upon a determination of potential income, as evidenced by educational level and/or previous work experience.
There is no requirement that there exist evidence of the obligor parent's intent to avoid support obligations in order to substitute potential income for actual income. Garfinkle v. Garfinkle, 945 S.W.2d 744, 747 (Tenn.App. 1996); Anderson v. Anderson, No. 01A01-9704-CH-00186, 1998 WL 44947 at *4 (Tenn.App. Feb. 6, 1998) (no Tenn.R.App.P. 11 application filed) (citing Ford v. Ford, No. 02A01-9507-CH-00153, 1996 WL 560258 at *8 (Tenn.App. Oct. 3, 1996) (no Tenn.R.App.P. 11 application filed)). II.
Where an obligor is "willfully and voluntarily unemployed or underemployed," however, rather than awarding child support based on an obligor's actual income, trial courts are required to award child support "based on a determination of [the obligor's] potential income, as evidenced by [his or her] educational level and/or previous work experience." Tenn. Comp. R. Regs. tit. X, ch. 1240-2-4-.03(3)(d) (amended 1994); see also Ford v. Ford, No. 02A01-9507-CH-00153, 1996 WL 560258, at *3 (Tenn.App. Oct. 3, 1996); Renick v. Renick, No. 01A01-9007-CV-00263, 1991 WL 99514, at *6 (Tenn.App. June 12, 1991), perm. app. denied (Tenn. Nov. 4, 1991).
Tenn. Comp. R. & Regs. 1240-02-04-.04(3)(a)(1); see Moore v. Moore, 254 S.W.3d 357, 360 (Tenn. 2007) (holding the broad definition of gross income includes a one-time capital gain); Ford v. Ford, No. 02A01-9507-CH-00153, 1996 WL 560258, at *2 (Tenn. Ct. App. Oct. 3, 1996) (holding a parent's withdrawal of trust principal should be included in broad definition of "gross income"). The definition specifically includes trust income.
Additionally, withdrawals of trust principal have also been determined to constitute income for child support purposes. See Ford v. Ford, No. 02A01-9507-CH-00153, 1996 WL 560258 at *2 (Tenn. Ct. App. Oct. 3, 1996)("Ford I"). We conclude that the trial court's determination of Wife's income at $33,360 per year lacks a proper evidentiary foundation and fails to consider the totality of Wife's financial resources.
The determination of whether an obligor is willfully and voluntarily unemployed or underemployed is dependent upon the factual background of the case. . . . Willful and voluntary unemployment or underemployment does not occur solely in cases where the obligor becomes unemployed or underemployed with the intent to avoid child support obligations. See Garfinkel v. Garfinkel, 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996) (citing Ford v.. Ford, No. 02A01-9507-CH-00153, 1996 WL 560258, at *1 (Tenn. Ct. App. Oct. 3, 1996)). Cases differ as to whether an obligor is willfully and voluntarily unemployed or underemployed.
However, the increase in an alimony obligor's income or worth is not, in and of itself, sufficient to warrant an increase in alimony to the recipient. Ford v. Ford, No. 02A01-9507-CH-00153, 1996 WL 560258, at *4 (Tenn.Ct.App. Oct. 3, 1996) ( no perm. app. filed). An award of alimony in futuro is not a guarantee that the recipient spouse will forever be able to enjoy a lifestyle equal to that of the obligor spouse.
Willful and voluntary unemployment or underemployment does not occur solely in cases where the obligor becomes unemployed or underemployed with the intent to avoid child support obligations. See Garfinkel v. Garfinkel, 945 S.W.2d 744, 748 (Tenn.Ct.App. 1996) (citing Ford v. Ford, No. 02A01-9507-CH-00153, 1996 WL 560258, at *1 (Tenn.Ct.App. Oct. 3, 1996)). Cases differ as to whether an obligor is willfully and voluntarily unemployed or underemployed.
If the evidence demonstrates that the obligor parent seeking the modification is willfully and voluntarily unemployed or underemployed, then the court is required to use that parent's potential income, rather than actual income, in setting the child support obligation. It is well settled that a court finding an obligor parent willfully and voluntarily underemployed must make a finding as to the parent's potential earnings, taking into consideration the obligor's educational level and/or previous work experience. Garfinkel, 945 S.W.2d at 748; Herrera, 944 S.W.2d at 387; Ford v. Ford, No. 02A01-9507-CH-00153, 1996 WL 560258 at *4 (Tenn.Ct.App. Oct. 3, 1996) (no Tenn.R.App.P. 11 application filed) (remanded to the trial court for a determination of the husband's potential income, specifically directing the court to consider his previous work experience and his educational background because the trial court had made no finding regarding his potential income since it had not found the husband to be willfully underemployed). A finding of potential income must have an evidentiary basis.Allen v. Allen, No. M1999-00748-COA-R3-CV, 2000 WL 1483389 at *6 (Tenn.Ct.App. Oct. 10, 2000) (no Tenn.R.App.P. 11 application filed).
1999); Garfinkle v. Garfinkle, 945 S.W.2d 744, 748 (Tenn.Ct.App. 1996). Accordingly, the courts must scrutinize the reasons for the obligor parent's career decision, McGaffic v. McGaffic, No. 03A01-9707-CV-00286, 1997 WL 772899, *4-5 (Tenn.Ct.App. Dec. 9, 1997) (No Tenn.R.App.P. 11 application filed); Ford v. Ford, No. 02A01-9507-CH-00153, 1996 WL 560258, *3-4 (Tenn.Ct.App. Oct. 3, 1996) (No Tenn. R. App. 11 application filed), and the reasonableness of his or her ultimate career choice. Narus v. Narus, No. 03A01-9804-CV-00126, 1998 WL 959839, * 2 (Tenn.Ct.App. Dec. 31, 1998) (No Tenn.R.App.P. 11 application filed).