In Watters v. Watters, 22 S.W. 3d 817(Ct. App. Tenn. 1999), the husband lost his job when his employer General Mills closed an office in Memphis and moved the office to Atlanta. The husband declined a transfer and accepted the "best offer he could find" in Memphis. (Id. at 822.)
The salary in the new job was less than half of his position and he sought a modification of his child support. He argued that he declined the transfer "to be near his son so he could not only exercise his visitation rights but to be involved in his son's other activities." (Id.)
The Court held that his declining of the transfer meant his he was "voluntarily underemployed" and not entitled to a modification of his support obligations, which were pegged at the higher salary, even though that higher salary was 390 miles (6.5 hour drive) away in Atlanta.
The Court noted:
While Husband's contention that he wished to remain in Memphis to stay near his son is admirable, his first obligation is to provide support to his son and to Wife. The trial court found and we concur that Husband's visitation with his son would not be curtailed by his employment schedule in Atlanta. Admittedly, Husband's ability to participate in some of his son's activities might have been affected, but this must be balanced with the need for support and maintenance. Husband is voluntarily underemployed, and the trial court was correct in not reducing his child support obligation. The trial court was also correct in imputing income to Husband based on his previous income at General Mills since this is a good indicator of his earning potential and is authorized by the guidelines. (Id. at 823.)
The Tennessee court required the obligor to move 390 miles away in order to meet his child support obligations.
A dissenting judge saw the case differently, arguing that modification should be granted because the job in Atlanta involved more weekly travel in a greater geographic area (which would further reduce his visitation) and the father testified that he could not work in Atlanta -- despite trying for several months -- "and maintain his commitments that he had made to his son." Id. at 823 (Hayes, J. dissenting). The dissent further noted that the husband sent out over 500 resumes, participated in 35-40 interviews, and utilized a placement service to assist his search after he declined to move to Atlanta. The Court added that the husband did not decline the transfer because he intended to evade his support obligations:
The uncontradicted proof at the referee's hearing established that the Husband faithfully exercised all court-ordered visitation, requested additional visitation on occasions, which was denied, "attended every football game when he was playing football, soccer games when he's playing soccer . . . participated in school events, parent/teacher events" and has been an active presence in his 15 year old son's life. Additionally, the record reflects that custody was at issue prior to the parties' divorce. I find from these facts that there was a substantial change in circumstances and that the trial court erred in failing to consider whether the Husband's motive for rejecting the transfer of employment was for the purpose of evading child support. Moreover, I find that relocation to Atlanta and the Husband's increased travel requirements would impede court-ordered visitation and all but eliminate the established bond between parent and child. In sum, I find the facts preponderate against the trial court's finding of voluntary underemployment and the corresponding issue of the Husband's ability to pay alimony. (Id. at 824.)