The Tennessee Child Support Guidelines provides the proverbial rules of the road for a Court’s discretion in imputing income gross income for purposes of calculating child support. A parent’s income may be “variable” fluctuate in the sense that it may be based on commission, bonuses, side-income, or inconsistent hours of overtime. The Court may average different amounts incomes over a specific period time. However,“averaging is usually correct for calculating a party’s fluctuating income, but it is not appropriate when a spouse’s income is steadily declining or increasing . . . . In such circumstances, the obligor’s income should be based on his or her current salary.” Cisneros v. Cisneros, No. M2013-00213-COA-R3-CV, 2015 WL 7720274, at *6 (Tenn. Ct. App. Nov. 25, 2015).
Tennessee’s Child Support Guidelines provide:
Variable income such as commissions, bonuses, overtime pay, dividends, etc. shall be averaged over a reasonable period of time consistent with the circumstances of the case and added to a parent’s fixed salary or wages to determine gross income.
Important facts for the Court to consider is the frequency of the change in income. If you are working overtime for several months in one particular year due to a one-time business order then this may be example where it is appropriate to average the income. However, if the overtime increases with steady frequency and this new business is on-going, then the Court will more likely impute income at the highest amount earned. The child support guidelines do not provide specific factors for determining the amount of time over which to average the fluctuating income, however there are a number of cases that state it should be over a longer period of time rather than the shorter. There are cases that have averaged the additional income over three months and others as long as four years. In one particular case, the husband had a one time capital gain arising from the sale of the business and his salary at new position was nominal. The Court averaged the amount of capital gain over three years as imputed additional averaged income.
Courts after adding an averaged additional income to a fix salary cannot impose a formula that fluctuates the amount of child support calculated. In 2013, the Court of Appeal overturned a case where the judge ordered the father to pay 642.00 per month and an additional amount of child support that equaled to 21% of any overtime or bonuses received. This did not comply with the child support guidelines cited above that such amount averaged is to be added to a parents fixed salary or wages to determine gross income. This would have amounted to monthly child support fluctuating which is not permitted by law.
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