Tommy Edwin Lightfoot appeals a divorce ruling from the Circuit Court of Hamilton County, which determined he was voluntarily underemployed by accepting a lower-paying job to be near his girlfriend. He contests the court's upward adjustment of child support beyond guidelines and the award of alimony in futuro to his wife, Sherry Lee Lightfoot. The court affirms the lower court's decisions.
The background reveals that Sherry filed for divorce after nearly twenty-three years of marriage, citing inappropriate marital conduct or irreconcilable differences. Tommy admitted to irreconcilable differences but denied any wrongdoing. The couple agreed on most property divisions, focusing on divorce entitlement, child support, alimony, and attorney fees during trial.
Sherry, aged 41 at trial, had a high school education and a fluctuating income from clerical work and gymnastics teaching. Her earnings over several years varied significantly, peaking at approximately $28,610 in 1996 and reaching $24,960 in 2000. Tommy’s income had notably increased after transitioning to contractor work, with annual earnings rising from about $50,398 in 1994-1995 to $173,137 in 1999. He was employed at Solv Corporation at the time of separation in March 2000, while Sherry had not worked for two years, dedicating her time to home care and assisting with her parents. The family maintained an upper-middle-class lifestyle and supported their children’s college education while managing to pay off much of their credit card debt in 2000.
On March 12, 2000, the Wife testified that the Husband became angry while trying to make airline reservations, expressing a desire not to return home. The following day, while in Boston, Husband acknowledged a potential affair when asked by Wife, revealing that a woman had been staying with him in a hotel. Wife subsequently traveled to Boston and stayed for about a month, during which they attended counseling. Wife described the Husband as her best friend and soul mate before March 12. She later learned that the affair had been ongoing for a year and that Husband no longer had feelings for her.
Wife experienced a crisis, leading to hospitalization after an overdose on Tylenol PM, during which Husband admitted his girlfriend stayed with him. Despite being covered by Husband’s insurance, he listed her as solely responsible for the hospital bill, which she continued to receive. Before returning to Chattanooga, Husband expressed disgust towards Wife, stating he was finished with the relationship.
After their separation, the couple's youngest daughter visited Husband once, and he only visited her workplace during a court-related trip. Wife filed an affidavit indicating a net monthly income of $1,595.56 against monthly expenses of $3,803.08, excluding any child-related costs. Husband testified that Wife initially contributed more financially to the marriage, including the deposit on their first apartment. He had shifted to consulting in 1996 to improve their financial situation and subsequently accepted higher-paying consulting jobs, including one in New Jersey.
After a period of unemployment, Husband took a consulting position in Boston that paid $100.00 per hour. He described the stress of consulting and struggled to find work afterward, citing difficulties due to the obsolescence of his previous job as a Year 2000 Project Manager. He remained unemployed for seven weeks before securing a new job at the time of trial.
The husband secured a permanent job in New Jersey with an annual salary of $70,000, which he asserts is less stressful than consulting roles. He left his resume online for one month but claims he received no inquiries for consulting positions. Although he stated he preferred permanent employment, he accepted a job in the same city as his girlfriend, which he described as coincidental. The husband contested the wife's view of their marriage, suggesting it had become more transactional and acknowledging that it had been deteriorating for two to three years. He admitted to an affair, claiming it only became intimate nine months before the trial, and denied that it was the cause of the marriage's breakdown. He forged the wife's name on a $1,500 loan in 1994. His net monthly income from his new job is $3,868, with expenses of $2,938, excluding child support and potential alimony. He denied financially supporting his girlfriend but later revealed that she has not worked in nearly a year, despite him covering their shared housing costs of approximately $1,300 monthly. He also acknowledged purchasing her gifts and paying for trips together. The husband has had minimal contact with his youngest daughter since the separation, citing financial constraints as the reason for not visiting her more frequently.
Witness Mr. James Levan, vice-president at BlueCross BlueShield of Tennessee, testified about the job market for contractors like the husband. Levan noted that, based on the husband's skills, a contractor could earn between $50 to $60 per hour in Chattanooga, translating to an annual salary of $100,000 to $120,000, compared to $65,000 to $70,000 for permanent positions. He indicated that the husband could potentially earn between $130,000 and $156,000 as a consultant in his region, emphasizing a current demand for such skills despite the instability associated with consulting jobs.
The Trial Court issued a memorandum opinion that outlined key findings leading to the final judgment in a divorce case. It determined that the Wife, who had a high school education and intermittently worked in clerical roles, had taken on the responsibilities of both parents due to the Husband's frequent travel. The Court found that the Husband, a college graduate, had engaged in a "blatant" affair, demonstrating no remorse, while spending substantial sums on his girlfriend despite claiming financial inability to fulfill his alimony and child support obligations.
The Court noted that the Husband had financially supported his mistress through vacations, living expenses, and gifts, attributing the marriage's failure solely to him and deeming his testimony on the matter not credible. Additionally, the Court found that the Husband was willfully underemployed, having chosen a job at a significantly lower salary of $70,000 instead of pursuing more lucrative consulting opportunities, primarily to remain close to his mistress and deprive his Wife of financial benefits associated with his earning capacity.
The Court determined the Husband's earning capacity to be $145,000 based on historical earnings and expert testimony, and set child support accordingly, deviating upwards by $500 per month due to the Husband's minimal involvement with their youngest daughter. It awarded the Wife alimony in futuro of $1,700 per month, supported by statutory factors including the parties' relative earning capacities, needs, and the Husband's fault in the divorce. The Court concluded that the Wife could not achieve a similar earning capacity or lifestyle to that established during the marriage, while affirming that the Husband had the financial means to pay.
Husband contests the Trial Court's finding that he was voluntarily underemployed, which influenced the calculations for child support and alimony based on potential rather than actual earnings. He also disputes the award of alimony in futuro instead of rehabilitative alimony and argues that the Court improperly deviated upward from the Child Support Guidelines. The standard of review for factual findings by the Trial Court is de novo, with a presumption of correctness unless the evidence strongly suggests otherwise. The determination of voluntary underemployment is factual, granting the trial court considerable discretion. Factors considered include past and present employment and the reasonableness of accepting a lower-paying job. Underemployment affects the amounts of child support and alimony, as statutes reference earning capacity rather than actual income. The Court found Husband voluntarily underemployed, noting issues with his credibility, especially during testimony regarding his job choice to be with his girlfriend. This credibility assessment is given significant weight on appeal. The Court's determination of Husband's potential income for child support and alimony was based on relevant factors, including his work history and education, supported by expert testimony. The findings align with the evidence, leading to the conclusion that the Trial Court did not err in determining Husband's earning capacity for support calculations.
Child support guidelines in Tennessee account for the expected visitation by the non-custodial parent, with provisions for additional support if such visitation is not occurring. Specifically, Tenn. Comp. R. Regs. ch. 1240-2-4-.04(1)(b) states that if the child does not stay overnight with the non-custodial parent during the typical visitation schedule, the custodial parent may be entitled to extra child support to cover care costs for the child during that time. In this case, the Husband had minimal contact with his daughter (only two occasions) since separation, leading to the conclusion that he was unlikely to exercise overnight visitation. The Trial Court determined this based on the evidence presented and concluded that an upward deviation from the child support guidelines was justified. The Husband can seek a modification of support if he establishes a consistent visitation pattern.
The Trial Court also awarded the Wife $1,700 per month in alimony in futuro, exercising its broad discretion in determining the need for and specifics of spousal support. Appellate courts are reluctant to overturn these decisions unless unsupported by evidence or contrary to public policy. The factors considered for alimony determinations include the parties' financial resources, education, duration of the marriage, age and mental and physical condition, employment desirability based on child custody, separate assets, marital property provisions, standard of living during the marriage, and contributions by each party to the marriage.
The court evaluates the relative fault of the parties and other factors, including tax consequences, to consider the equities between them. It emphasizes the intent to rehabilitate economically disadvantaged spouses through temporary support whenever feasible. If rehabilitation is not possible, the court may grant long-term support or alimony in futuro. In this case, the Trial Court determined that awarding alimony in futuro was appropriate, given the Wife's need for support and the Husband's ability to pay. Although the alimony awarded requires the Wife to adjust her lifestyle, it allows her to meet monthly expenses. The Trial Court found that the Wife could not be sufficiently rehabilitated based on her educational background and work history. After reviewing the record, the court found no error in the Trial Court's decision regarding spousal support, affirming its ruling. The case is remanded for any necessary further proceedings and for cost collection, with appeal costs charged to the Appellant, Tommy Edwin Lightfoot.
