JOHN W. McCLARTY, JUDGE.
This is an appeal from a child support action. A juvenile court magistrate found the father to be willfully and voluntarily unemployed and imputed income to him for the purposes of calculating his child support obligation. The magistrate refused to consider a motion to modify or vacate. On appeal to the juvenile court judge, the father was refused review on the basis that the magistrate had heard the motion to modify or vacate pursuant to Rule 34(b) of the Tennessee Rules of Juvenile Procedure. The father appealed. We vacate the judgment of the juvenile court and remand for further proceedings.
In October 2008, a petition to set child support was filed by the State of Tennessee on behalf of Carissa D. ("Mother"), the mother of Hannah M. N. ("the Child") (D.O.B. 10/29/2000). Four month's later, the Child's father, David N. ("Father"), appeared pro se at a hearing before the magistrate for the juvenile court ("the Magistrate"). According to the Statement of the Evidence submitted by the State:
Specifically regarding his income from approximately 18 years ago, Father testified that he had earned about $30 per hour and worked an average of 24 hours per week in a charity casino in Prince George's County, Maryland. He related that a change in Maryland law forced the closure of the casino and that he had been unable to find employment in the casino business. Father testified that he had resided in Knox County, Tennessee, since approximately 1997.
According to Father, neither the State nor Mother offered proof that Father was earning more than $20,000 per year. However, the Magistrate found that Father's support obligation should be based on an imputed income of $50,000 per year and set his support obligation at $627 per month. The order memorializing the support hearing was entered on March 2, 2009, and reflects that Father was advised of his right to appeal the decision of the Magistrate to the presiding judge of the juvenile court ("the Judge"). According to Father, the following day, he filed a notice of appeal from the judgment of the Magistrate. Around this period of time, a petition for contempt was filed alleging that Father was in arrears in support payments in the sum of $6,647 as of April 13, 2009.
On August 26, 2009, the Magistrate conducted a hearing regarding the pending motions. She declined to hear Father's petition to modify, citing Father's "lack of credibility" at the initial hearing. The Magistrate related as follows:
In response to the Magistrate, Father's counsel commented:
The Magistrate refused to return to the income issue. The petition for contempt was heard at which time Father testified that he was presently working at the private club in Knoxville earning approximately $320 per week. Father presented his 2008 federal income tax return showing an adjusted gross income of $8,327. Upon being found in willful contempt of court,
On September 4, 2009, Father filed a notice of appeal from the Magistrate's judgment. A hearing was held before the Judge on January 13, 2010. The Judge found that Father had waived his right to a de novo hearing by previously filing the motion to modify or vacate, despite the fact that he was informed the Rule 34(b) motion had not been heard by the Magistrate, but was summarily dismissed based on Father's "lack of credibility." Father requested leave of the court to submit an offer of proof on the record regarding Father's income history and income verification, but the request was denied and Father's appeal was dismissed.
An amended notice of appeal was filed by Father on February 2, 2010.
The issues presented by Father are as follows:
Our review of the findings of fact below is de novo with a presumption of correctness, unless the preponderance of the evidence is otherwise. See Tenn. R. App. P. 13(d). As to matters of law, our review is de novo with no presumption of correctness. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997).
Awards of child support are governed by the child support guidelines promulgated by the Tennessee Department of Human Services Child Support Service Division. See generally Tenn. Comp. R. & Regs. 1240-2-4; Tenn. Code Ann. § 36-5-101(e)(2). Broad discretion is afforded the trial court in its child support determinations. That discretion should not be disturbed on appeal unless we find in our de novo review that the evidence preponderates against that finding. See Butler v. Butler, 680 S.W.2d 467 (Tenn. Ct. App. 1984). We review the trial court's child support decisions using the deferential abuse of discretion standard. Richardson v. Spanos, 189 S.W.3d 720, 725 (Tenn. Ct. App. 2005).
Whether a party is willfully and voluntarily underemployed or unemployed is a fact question. See Brooks v. Brooks, 992 S.W.2d 403, 409 (Tenn. 1999). In making its determination, the trial court must consider the party's education, training, ability to work, past and present employment, and whether the present job choice was reasonable and made in good faith. Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)2.(iii); Willis v. Willis, 62 S.W.3d 735, 738 (Tenn. Ct. App. 2001). Although a person has a right to seek fulfilling employment, an obligor parent will not be allowed to lessen his or her child support obligation by choosing to work at a lower paying job when he or she has the ability to earn a greater salary. Willis, 62 S.W.3d at 738.
At the initial support hearing before the Magistrate on October 21, 2008, Father was not represented by counsel at the hearing. The State argued that Father had not submitted reliable evidence of his income and that he was willfully and voluntarily unemployed. The Magistrate found Father to be voluntarily unemployed at that time and imputed his income to be $50,000 per year on the basis of his past employment in the casino business many years ago.
Under a previous version of Tenn. Comp. R. & Regs. 1240-2-4-.04, failure by Father to produce reliable evidence of his income would have provided grounds for imputing income. See Brewer v. Brewer, No. M2005-02844-COA-R3-CV, 2007 WL 3005346, at*8 (Tenn. Ct. App. Oct. 15, 2007). However, currently, under Tennessee law, there is no presumption that a parent is willfully or voluntarily underemployed or unemployed. The party alleging that a parent is willfully or voluntarily underemployed or unemployed carries the burden of proof. Tenn. Comp. R. & Regs. 1240-2-4-.04(3)(a)(2)(ii); Richardson v. Spanos, 189 S.W.3d 720, 727 (Tenn. Ct. App. 2005). Consequently, the State, acting on Mother's behalf, had the burden of demonstrating that Father was willfully or voluntarily underemployed.
We must therefore agree with Father that the record in this cause does not support the finding of the juvenile court that the State established Father's support obligation should be based upon an imputed monthly income of $4,166.67. Accordingly, this cause must be remanded to the juvenile court.
The judgment is vacated and this case is remanded to the juvenile court for further proceedings. Costs of the appeal are taxed to the State of Tennessee ex rel. Carissa D.