10 May 2012

Voluntary Underemployment by a Tennessee Lawyer Seeking Lower Alimony

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Case summary on Tennessee alimony law modification, lower alimony, voluntary underemployment, and income determination in Tennessee divorce and family law.

Barbara Jean Hooper Flynn v. Robert Dean Flynn

In the case of Barbara Jean Hooper Flynn, Ms. Flynn and previous husband Robert Dean Flynn, Mr. Flynn, the appeals court was requested to determine if the husband was voluntarily reducing his income in an effort to reduce his ability to pay alimony charges to his previous wife. 

A previous ruling provided that Mr. Flynn was to receive alimony in future until death or remarriage of $12,000 per month until the sale of the marital home, $9,000 per month until the age of 66 and $6,000 per month thereafter.  Mr. Flynn was an attorney, and at the time was working for Spicer, Flynn and Rudstrom, SFR, a profitable company. At the time, his earnings amounted to $400,000 per year. The two were married from 1975 to 2003.

In the court case, Mr. Flynn is requesting that a reduction of alimony occur noting that his circumstances have changed. Ms. Flynn notes that this is not true and that he is voluntarily under employed to hide some of his income.

In 2004, Mr. Flynn married Ms. Howard Flynn who was also an attorney. Due to a conflict of interest, SFR expelled Mr. Flynn from the partnership at which time he left to join his new wife’s firm of Howard Flynn. In 2010, he requested the court to modify the final decree of divorce to terminate the alimony obligation to the first wife.

The court determined that Mr. Flynn, who stated he was now only earning $130,000 annually, was underemployed voluntarily in that he could have sought out other employment and, as such a well-known attorney, could have been making more. He noted that he took the first position he could after being expelled from SFR and that was to work with his much less experience wife in her firm. At the time, he was earning just 45 percent of his billable hours while the firm Howard Flynn required 55 percent of his per-case earnings. Ms. Flynn alleged that his shares in that company were a way for him to hide some of his income.

The original court ruled that Mr. Flynn was indeed willfully underemployed and ordered that the alimony be kept at the level it was set forth originally. The appeals court was then requested to determine if this was a justified ruling. After looking at the evidence in the case, the appeal court noted that there was no reason to believe he was in fact purposefully under employed.

However that as the case did have elements that indicated he could be using the firm as a way to reduce his income, the appeals court decided to vacate the original ruling and sent the case back to the lower court. The appeals court noted that the lower court should further determine, through further discovery, if necessary, if Mr. Flynn is manipulating his income to shift income to Ms. Howard Flynn to avoid alimony obligations.

January 27, 2012, Direct Appeal from the Circuit Court for Shelby County, Donna Fields, Judge, No W2011-01138-COA-R3-CV.

Memphis divorce lawyer, Miles Mason, Sr., JD, CPA practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC, which handles family law matters including divorce, child support, alimony, child custody, parental relocation, child support modification, and alimony modification.

Disclaimer: See original opinion for exact language.  Legal citations omitted.

Miles Mason

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Memphis divorce and family lawyer, Miles Mason, Sr. is the founder of Miles Mason Family Law Group, PLC. For more information about our professional staff, see our Meet the Team page.

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