# FILED September 25, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) KIMBERLY

LYNN HYDE N , ) Decatur County Chanc ery Court ) No. 2285 Plaintiff

/Appella nt. ) ) VS. ) C.A. No. 02A01-9611-CH-00273 ) JOHN CARL H

YDEN , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Chancery

Court of Decatur County a t Decaturville. Honorable Walton West, Chancellor
Carthel L. Smith, Jr. , Lexington, Tennessee Attorney for Plain tiff/App ellant. K. Don Bishop , SPRAGINS, BARNETT, COBB & BUTLER, Jackson, Tennessee Attorney for D efendant/Appellee.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J. HIGHERS, J. : (Concur s) INMAN, Sr. J. : (Concur s)1 The Tennessee Child Support Guidelines provide for a child support award of $501, for thre e chi ldren, wh ere t

he ob ligo r’s g ross m onthl y incom e is $1 ,500. See a

ppen dix. This appeal involves a

petition to

modify child supp ort filed

by t he appellant, Kimberly Ly nn Hy den (“Mother”) agains t the appe llee, John Ca

rl H yden (“Fath er”). A fter a h earing, the chancellor enter

ed a f inal judgment increasing Father ’s monthly child support obligation, for benefit of the parties’ three minor children, from $300 to $500 based upon the t rial court’s computation of a gr

oss monthly

income of $1,500. 1 Mother has appealed, contending that the trial court failed to consider all relevant factors in deter mining Father’s income, including his willful and voluntary underemployment, and

that the trial court

should hav e imputed

a minimum a

nnual inc ome of $25,761 basedupon provisions of the child support guidelines. For the reasons set forth below, we affirm and remand.

The parties weredivorced by f inal decree entered in September 1993. The decree set Father’s c hil d support a

t $300 per

month based on the fa

ct that he was atte nding c ollege

and only working part-time. At the May 1996 hea ring on this matter, Mother testified that the costs for caring for the parties’ three children, age s 9, 7 and 6 at the time, had in creased 30 to 40 pe rcent. T hese costs include $ 130 per w eek for child care; $285 per month

for their health in surance ; $60 per m onth for life insur

ance; $4 5 per we ek for sc hool acti vities and

expenses; and $350 p er mo nth fo r the children’s clothing. There are also additional expenses f

or the me dical ca

re of the parties’ you

ngest child, diagnosed with attention deficit disorder, in the amount of $115-$165 per mo nt h. It has been recommended

that this child under

go coun seling f

or the dis ability

which, a ccording to Mothe

r, will cost approximately $225 per month. Mother stated that she r eceives financial assistance from her present husband r

egard ing the c hildren’ s care. She is self -employ ed, but stated tha

t her business, “We Care Home Services,” which she described as a “commercial and medical company,” w as “brand n ew” and curren tly o peratin g at a lo ss.
Mother testified that when the parties first married, Father was in the trucki n g business. Shortly thereafte r, he made the decision to continue his education to become an orda ined minister, with Mother’s encouragement. They moved to Parsons where Father served as pastor of
a local church. Father enrolled at Bethel C ollege

in Augus t 1992. Moth

er work ed and a lso attended college. At the time of their divorce, Father remained a student at Bethe l College . He gr

aduated inMay

1995 with

a Bachelor of Arts deg

ree. He then entered the Memphis Theological Seminary in the fall of that ye ar as a full-time student.

Father testified that he has remarried and that his present wife , who has custody of three minor chil dren, pr

imarily supports h

im. He mak

es no rout

ine fina ncial co ntribution

to his present household . The mone

y he earns issubject to

disposal a s he seesfit.

F ather stated tha

t he must ea

rn 21 credit hours to

fulfill hisrequire

ments in th e se mi na ry, which he hopes to accom plish in three yea

rs. He explained that 75% of his school tuition is paid through a min

isterial scholar ship. He isalso giv en an allowan ce for books. He attends classes two days a week, six hours a day . He was “ stative su pply ” at two a

rea chu rches un til Augus t 1995 when he resigned those positions to seek a full-time student pa stor positi on. His att empts to obtai n such employment have been unsuccessful. He stated that during the past y ear, he sou gh t
e mployment

in this capacity at appr

oximately 30 different are a churches where the job i ntervie w mainly took the form of a trial sermon. He conducted trial sermons at various churches eve ry wee k butone during the year and was compensated for each sermon, on aver age, $125. Father stated that it is possible to earn $75 0 to $1,0 00 per month as a student pastor. He explained, however, that within his denomination there are no established guidelines for pay and that re

muneration depends upon the size and vi ability of the ch urch. F ather wa s not ministe ring an ywhere at the time of trial. He said that he had also “sought employ ment at at least 30 or

40 different places in various areas,” but without

success
Father testified to two “summer jobs” he presently holds: a ca rgo handler for

Federal Express, earning $6.98 per hour at 17-1/2 hours per wee k and a tr uck drive r for Oza rk Motor L

ines, earning $9.75 an hour for 10 hours per week. Fa ther intends to remain a full-ti me stu dent in the seminary (attend in g fall and spring semesters), but stated that he would continue his position at Fe de ra l E xp re ss on a p ar t- ti me ba si s i f g iv en th e o pp or tu ni ty.

Father’s federal income tax returns for the years 1993- 94 reflect annual earnings of $9,979 and $11,981, respectively . He stated that he has outstanding student loans in the amount of $12,000 and has a

lso rece ived fina ncial as si st ance from his family . In January 1996, Father filed2 We note som ewhat curiously

that Appe

llee’s pe tition, in lis ting his mo nthly expenditur

es, does not include

any amount fo

r child su pport. Chapter 7 bankruptcy. His pe

tition listed his net monthly income at $541.67 w ith assetsof $2,700 and liabilities totaling approximately $42,000. 2

Based upon the f

orego ing evid

ence, th e trial c ourt rule d from the bench a s follows:
[T]he Court’s of

the opinion that the children ought to come first, as far as parents are concerned a nd when it

comes to choices in life I’m of the opinio n that we j ust simply have to pu

t our child

ren firs t. Above education, above recreatio n, above just about

any thing el se I can think of. And so, wh

ile I respec t someone

who seek s to enhance their education . . . . I

f it confl i cts with su

pporting the children I be lieve th e c hi ld re n n ee d t o t ak e p ri or it y. The evidenc e in this ca se reflects that [Fa ther], at l east

based on his prese

nt employ

ment shoul d be a ble to ea rn appro ximately $8.50 an hour o n avera

ge. He should be a

ble to hav e a gro ss income approxima

tely $1,500.00 per month. Your child support for three children will be set at $500.00 per month.

. . . .

. . . I . . . computed

that I think he has the capability of earning $8.50 an hour in my opinion times 40 is $340.00 per week times52 is $17,680.00 a yea

r divided by 12. I ’ve rounded it off to $1,500.00 per month.

. . . . . . . that’s the method I used.
We perceive the sole issue on appeal as whether the tr ial co urt er red in its h oldi ng. Mother asserts t hat the tr ial cour t errone ously

based it s de cision on Father’ s avera ge hour ly r ate regarding his prese nt part-t ime employ

ment p ositions and failed t o take into consi derati on hi s coll ege degree, earning capacity

or previous work experience. She insists tha t the trial court should have imputed to Father the minimum annual income of $25,761 which she arg ues is required under the child support guidelines in instances of intentional unemploy ment or underemployme

nt.

As to the monetary amount sug gested, Mother apparently refers to Tenn. Comp. R. & Regs . title 1240 , ch. 2-4 -.03(3) (e) whic h states:When establishing an i nitial order and the obligor fails to produce evidence of income

(such astax return s for prio r y ears, check

stubs, or other inf ormati on f

or determining current ability to support or ability to support

in prior y

ears), and the c ourt has n o other r eliable evidence of the obligor’s income or income potential, g

ross income for the current and prior y

ears should be determined by i mp uting annual income of $25,761.

We find this section of th e child su pport gu idelines inapplica

ble here as it pl ainly

refer s to those
cases “establishing an initial order” of child support and those instances whe re the obligor has failed to show any evidenc e of income, rend e ring the trial court without any reliable evidence rega

rding income or income potential. It is only under these circumstances that an annual income in the amount urged by Mother shall be imputed. Here, the initial order was established in the final dec ree of divorce which Mother now seeks to modify and the trial court

clearly ha

d before it evidence

of Father ’s annua

l earnin gs for r

ecent y ears.

We note that subsection (f) of the regulation addre sses those cases where “established orders are reviewed for adjustment.” I t provides for an increase in the obligor’s c hi ld support obligation “by an incr

ement not to exceed [10%] per year for each year since the support order was entered or last mod

if ied.” We find this secti on equall y in applica

ble as it, t

oo, perta ins to those instances where th

e obligo r has fa iled to pro duce an

y evidence

of in come so t hat the court has no reliable evidence on which to base a decision.

When calcula

ting chi ld support

awards , chap ter 2 -4-. 03(3 )(d) state s: “[i ]f an obligor is willfully and voluntarily unemployed or under

employed, child support shall be calculated based
on a determination of potential income, as evidenced by educational level and/or previous work
ex perie nce.” Although the trial court made no express determination that Father is willfully or voluntar ily underemployed, we find the court’s decision to necessarily imply such finding. The tr ial court determined that Father “has the capa bility of earning

$8.50 an hour . . .” and proceeded to set chil d support bas ed upon Father being employ ed full-time at this hourly rate. I t was Father’s testimonyth at he in te nd s t o w or k o nl y p art-t ime until completion of his pastoral studies and graduation

from the seminary . Clearly, the trial cour t did not base its decision on such part-tim e employment

status. Th

erefor e, we co nclude th at the tri al court implicitly

found Fa ther willf ully underemployed.The question then becomes whether the trial court’s increa se in child support is based
on an accurate assessment of Fa ther’s “potential income,” as evidenced by his level of edu catio n and/or prior work

experience. Mother asserts that the evidence establishes a much hig her earning capaci ty than $8.50 an hour. The record i ndic ates that at the beginning of the parties’ marriage, Father was employe d in the tr uckin g busi ness b efore p ursui ng a colleg e educa tion in rel igion. Whi le he posses ses a Ba chelo r of Art s degree , it i s not disp uted t hat he has fo und di fficu lty obta inin g a studentpastor position and that until completion of his pastoral studies he cannot seek permanent employment as an orda

ined minister.

Our review of the trial court’s findings of fact i s de novo upon the record accompanied

by a presumption of cor

rectness unless the evidence prepondera tes othe rwi se. Rule 13(d) T.R. A.P. We do not find the record to preponderate ag ainst the trial court’s determination regarding Father’s present earning capabilities or “potential income .” Father’s present employ ment appears commensurate with his prior work experience based on

th e r ec or d b efor e u s. Ac co rd in gl y, we find that the trial court properly established Father’s gross monthly earnings at $1,500.
T.C.A. § 36 -5-101( a)(1) p rovides, in part:

In cases involving child supp ort, upon application of either party , the court shall decree a

n incr ease or decrease of suc h allowance when there is found to

be a sig nifican

t varian ce, as de fined in th

e child support guidelines established

by subsection (e), between the guidelines and the amount of support currently or de red unless the variant s has resultedfrom a previously court-or

dered deviation from the guidelines and the circumstances which caused the deviation have not changed.

The guidelines define a “sig nifican t variance” as “ at least

15% if the current support is one hundred dollars ($100.00) or

greater . . . .” Tenn. Comp. R. & Reg s. Title 1240, ch. 2-4-.02(3). Under the present circumst ances, a signific ant vari ance is c learly shown toexist between the am ount curr ently awarded and that as established under the guidelines for an o bligor with earn ings or “ potentia l” earnings as that of Father.

We conclude that the trial court’s modification of Father’s child support obligationfrom

$300 to $500 was proper. The judgment is, acco rdingly , affirm

ed and thi s cause

remanded for any further necessary

proceedings. Costs are taxed to the appellant, for which e xecution may issue if ne ce ss ar y.

____________________________________ FAR MER , J.

______________________________ HIG HERS, J. (Conc

urs)

______________________________ INMA N, Sr. J. (Con

curs)