# FILED
February 6, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE WESTERN SECTION AT NASHVILLE RICKYE D. ANDERSON, ) ) Plaintiff/Appellant, ) Rutherford Chancery No. 91DR- 506 ) VS. ) Appeal No . 01A01-9704-CH- 00186 ) L. LOIS ANDERSON, ) ) Defendant/Appellee. )
APPEAL FROM

THE CHANCE RY COURT O F RUTHERFO RD COUNTY AT MURFREESBORO, TENNESSEE THE HONORABLE ROBERT E. COR LEW, III, CHANCELLOR

JAY B. JA

CKSON Murfreesboro, Tennessee Attorney for Appellant

THOMAS D. F ROST Murfreesboro, Tennessee Attorney for Appellee

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FA

RMER, J. TOMLIN, Sr. J.2

Rickye D. Anderson (the Father) appeals the trial court’s order denying his petition to reduce his child support payments to his ex- wife, L. Lois Anderson (the Mother), and ordering h im to pay a p ortion of the Mother’s at torney’s fees. We affirm.

The parties were div

orced in 1993. The final divor ce decree awarded the Mothe r primaryphysical custody of the parties’ two minor

children and ordered the Father to pay child s u pport to the Mother in the amount of $938.4 7 per month. Pursuant to the Child Support Guidelines, this amount represented thirty-two percent (32%) of the Father’s net monthly income. At the time of the d ivorce, th e Father, who had a bachelor of science deg ree plus two years toward a masters degree, was earning a salary of approximately $48,000 from his employment with the Tennessee Valley Authori ty (TVA).

The final divorce decree also requiredthe Father to pay to the M other 32% of any income he received above this amount. Specifically , the decree provided that:

At the end ofeach year, [the Father] shall determine w hether he has earned taxable income above the regular pay in effect at the time of the hearing of thi s cause, including outsid e business income, and pay 32% of such additi onal inc ome to [the Mother]. As to outside in come it is un de rstood that legitimateand lawful business e xpens es can be deducted. Any additional monies

shall be due an d payable within 30 d ays from receipt of

W-2 forms or other I.R.S. forms showing other earnings of each and every year

. U pon request, [the Father] s hall provide copies of his yearly tax return or wage statements.
In 1 994, TVA informed its employees that it planned to redu ce its work force signific antly. Specifically, TVA planned t o reduce the Father’s department , I nformati on Systems, from about 1050 employees to 700 employ ees. In order to achieve thi s reduction in force without firing

employees, TVA

offered its employees three “ear ly-out” options. The Father, concerne d for his j ob securi ty, chose an early-out option whereby, upon his termination from TVA, he received one-half of his final salary. When the Father left TVA in Octo ber 1994, he was earning in excess of $50,000. The Father’s gross term inatio n pay, therefore, was $25,307. 50.3

The month following his v olun tar y termination from TVA, the Father unilaterally reduced his monthly chi ld support payments to the Mother. Rather than looking for a comparable position with another entity, the Father d ecided to start his own computer business. According to the Father, TVA paid its employees significantly more than priv ate companies, and he did not want totake a pay cut. The Father ad mitted, however, that he previou slyearn ed more with a privat e company than he did at TVA and that, if he had found a comparable position, he could have expec ted to ea rn at leas t $40,00 0. In the t wo years prior to his terminatio n, the Father earned in exc ess of $57,000 and $68,00 0 , respectively.

Rather than immediately accepting his termination pay, the Father was able to defer paymentuntil after January 1, 1995. Taking the position that he did not act ually earn this moneyuntil 1995, theFather did not pay the Mother 32% of his t ermination pay. The Father received a

net bonus of $16,285, 32% of which w as $5,211. The Father used this moneyto support himself and his new wife and to finance their new compute r business.

In January 19 95, the Father also filed this petition to reduce his monthly child support obl i gation. As grounds ther efor, the Father asserted that he was “involved in a
new corporation and [was] currently earning $1, 000 per month, substantially less than that earned a t the time

of the [final divorce decree] .” The Mother filed a counter- petition seeking a judgment for chil d support arrearages and other relief.

The hearing did not take place un til June 1 996, eighteen months after the Father filed his petition. At the time of the hearing, th e Father st ill was operating his computer business. The business, however, was not profitable, and the Father contended that he sti ll was unable to pay child support at the amount previously established. The Fa the r testified that he eventually w ould seek outside employmen t if the bu siness was not profitable but that he was “not ready to give it up yet .” The Father still be lieved that the business had the potential to make a lot of money, and he was “working very hard to turn th e business around.” The Father planned to make a decision on w hether to con tinu e1 Although not incl uded in the Mot her’s counte r-peti tion, this i ssue apparentl y was tri ed by consent of

the parties

. 4 operating the business within the next year. The Father testified that, in any event, if the business did not become more profitable in the near future, he would not be able to operate the business any further bec ause he would not be able to bor row any more mon ey. The Fathe r testified that a lending i nstitution had denied his req uest for a business loan and that he almost had reached the cr edit limits on his var

ious credit cards.
Although the Father r

eported only

a small inc

ome from his computer business, the business also compensated the Father and his wife for certain expenses. T he business, which rented office space in the wife’ s garage, paid at least $300 of the wif e’s $800 monthly house note, and the business paid o ver $500 in expenses every month for the Father’s car. In additi on, the Father’s wife w as paid a small salary

by the business.

At the hearing’s conclusi on, the tr ial court entered an order denying the Father’s petition for modification and awarding the Mother

child support arrearag es in the amount of $6,379.89; however, the tr ial court denied the Mother ’s request for an award of 32% of the Father’s termination pay from TVA. The trial court also granted the Father temporary relief in that it allow

ed the Father to pay the Mother “the sum of $550.00 per month for a period of one year from the date of [the]hearing with the differenc e between $550.00 and the $938.47 previously or dered accruing as a permi ssible arrearage.” The Mother was awarded a judgment of $2,000 for a portion of her at torney’s fees. Finally, the trial court denied the Mother’s reques t to modify the visitati on schedule previously ordered. 1

On appeal from the trial court’s order, the Father has rai sed the following issu es for this cour t’s review:

1. Whether the trial court erred when it concluded that the [Father’s] petition to reduce child s upp ort should be denied. 2. Even if [the Father] is considered willful[ly ] and voluntarilyunderemployed, [whether] the trial court erred in failing to make an expre ss ed factual determination as to [the Father’s] earning potential.2 The gu id elines pr ovide that , for “pur

poses of defini ng a signif icant variance between t he guideli ne amount and the current support order

pursuant to T.C.A. § 36-5-10 1, a significant varia nce shall be at least [fift een percent] 15% i f the curren t support is one hundred dollars ($100.00) or greater per

month and at least fifte en dollars ($1 5.00) if the c urrent su pport is les s than $1 00.00 pe r mon th.” Tenn. Comp. R. & Regs. ti t. X, ch. 1240-2-4-.02(3) (am ended 1994). 5

3. Whether the trial court abused its discretion when it required [the Father] to pay $2,000 tow ard the attorney’s fees of [the Mother]

. 4. Whe t her

the trial court erred w hen it awarded [the Mother] a judgment for child support arrearage.

Trial courts are req uired t o modify an obligor’s child s upport obligation only when a “significant

variance” exists between the amount of support required by the Child Support Guidelinesand the a mount of th e current support oblig ation. State ex re l. McAllist er v. Goode , No. 01A01-9510-CV-00452, 1997 WL 576329, at *5 (Tenn. App. Sept. 17, 1997) (citing T.C.A. § 36-5-101(a)(1)) . In cases where the obligor seeks a downward modification, the obligor generall y will be entitl ed to such modification by demonstrating the existence of a significant varianc e, usually defined as at leas t fifteen percent. See Tenn. Comp. R. & Regs. tit. X, ch. 1240-2-4-.02(3) (amended 1994). 2 Wher e the evid ence sho ws that the obligor is “w

illfully and voluntar

ily unemployed or under employed ,” however, the obligor is not entitl ed to a downward modificati on of his support obligation. Id

.

The guidelines direct tr

ial courts to determine the a mount of support required by the guidelines

“ba sed on a flat percentage of the obligor’ s net income.” Tenn. Comp. R. & Regs. tit. X, ch. 1240-2-4-. 03(2) (amended 1994) . Where an obligor is “wi llfully and voluntarily unemployed or underemployed,” however, rather than awarding child support based on an obligor’s actual inc ome, trial courts are req uired to award child support “based
on a determination of [the obligor ’s] potent ia l income, as evidenced by [his or her] educational level and/or previous work experience.” Tenn. Co mp. R. & Regs. tit. X, ch. 1240-2-4-.03(3)(d)(amended 1994); see also Ford v. Ford , No. 02A01-9507-CH-00153, 1996 WL 560258, at *3 (Ten n. App. Oct. 3, 1996); Renick v. Renick , No. 01A01-9007-CV-00263, 1991 WL 99514, at *6 (Tenn. App. J une 12, 1991), perm. app. denied (Tenn. Nov. 4, 1991).6

In denying the Father’s petition to reduce his child support obligation, the trial court specifically found that the Father had the capacity to earn a greater

income than he was making at the time of the he aring. We believe that this finding is suffici ent to support the imputation of income to the Father for purposes of determining his child s upport obligation. See Barnes v. Barnes , No. 02A01-9403-CH-00033, 1995 WL 114171, at **6-7 (Tenn. App. Mar. 17, 1995) (affirmingchild support award bas ed on imputed income where tri al court specifically found that father ha d a bility to produce more i ncome than he did at time of trial).

Moreover, we co nclude that the evidence suppor ts the trial court’s dec ision to impute income to the Father. At the hearing below, the Father acknow ledged that he was capable of earning more income than he cur rently was earning . The Father testified that he was earning about $48,000 from his employment with TVA at the time of the divorce in 1993. The Father’s tax recor ds for that year showed that he actually earnedin excess of $57,000, which included income from anot her employer which paid him a higher salary than did TVA. The Father testified that, whe n he left TV A, he consciously chose not to seek a comparable position with anoth er emplo yer becau se he plan ned to st art his own business. The Father also admitted that, had he found such a position, he probably would have earned at least $40,000 annually. The Father c laimed that he could not have earned
as much with another employer as he did at TVA; however, this testimony was contradi cted byhis own acknowledgement thatin 1992, when he was w orking for a private

contractor, he earned over $65,000 from this empl oyer, more than he ever earned at TVA. Based on the foregoing evidence, w e affirm the trial court’s decis ion to deny theFather’s request for
a reduction i n his child support obligation based on the court’s finding that the Fathe r’s earni ng capa city was greate r than his current income. See Riley v. Riley, 03A01-9480-CH-000268, 1995 WL 311331, at **1-2 (Tenn. App. May 22, 1995) (affirming trial court’s award of chil d support based on pote ntial income where father pos sessed bachelor of science degree from u niversity, vo luntarily left employment where he was earning $28,000 annually, and unsucces sful ly attempted to earn living as farmer); Renickv. Renick , No. 01A01-9007-CV-00263, 1991 WL 99514, at *6 (Tenn. App. June 12,7

1991) (remanding for determinatio n of pot ential income where father claimed that his actual incomewas approximately $18,000 but he earned in excess of $35,000 in each of three years prior

to divorce), perm. app. denied (Tenn. Nov. 4, 1991); Gutknec ht v. Gutknecht , No. 01A01-9101-CH-00015, 1991 WL 79560, at *1 (Tenn. App. May 17, 1991) (affirming trial court’s awa rd of child support based on potential income where father conceded at trial that he was c apable of earning $25,000 annually ); cf

. Beem v. Beem , No. 02A01-9511-CV-00252, 1996 WL 636491, at **3-4 (Tenn. App. Nov. 5, 1996) (holding that trial court erre

d in imputing

incomewhere father was forced t o leave job earning $55,00 0 when his position was eli minated and he thereafter unsuccessfully s oughtcomparable fulltime position).

On appeal, the Father contends that the record does not support a finding of willful and volun tary underemployment because no evidence was presented that the Fath er’s employment

decision was made wi th the specific intent to escape his chi ld su pport obligation. This court previousl y has rejected this i nterpretation of willful und eremployment
as used in t he Child Su pport Guidelines. In Ford v. Ford , No. 02A01-9507-CH-00153, 1996 WL 560258 (Tenn. App. Oct. 3, 1996), we stated that:

Examining the language of the subject provision in light o f the policies underlying the guidelines and applicable case l aw, we h old that there is no requirement that there exist evidence of an obligor’s intent to av oid supp ort obligations in order to impute in come to the obligor based upon hi s or her potential income. Ford , 19 96

WL 560258, at *3; accord Garfinkel v. Garfinkel , 945 S.W.2d 744, 748 (Tenn. App. 1996).

We also reject theFather’s contention that our decision in Herrera v. Herrera , 944 S.W.2d 379, 387 (Tenn. App. 1996), requi res us to remand this case for a specific determination of the Father’s potentialincome. At the hearing, the Father testified that his salarywas $48,000at the time of the divorce when his initial support obligation was set at $938.47 pursuant tothe Child Support Guideli nes. Implicit in the tri al court’s decision to deny the Father’ s request fo r a reducti on is the find ing that the Father’s potential in come has not decreas ed from the amount he was earning at the time of the divorce, $48, 000.8

Inasmuch as the record contains evidence to support this figure, w e decline to disturb the trial court’s decisi on to deny the Father’s peti tion.
In light of our affirmance of the tria l court’s decision, we likewise affirm the court’s award of $6,379.89 in child support arr earages tothe Mother. The Mother testified that this
was the correct amount of arrearag es at the hearing held in June 1996,and she introduced
an exhibit showing all amounts paid since the divor ce. Apparently, a subsequent hearing
was held in July 1996 during which the Father

introduced copies of

checks which, he now contends, refuted this amount. We no te, h owever, that no transcript of such a hearing appears in the record on appeal and, thus, we are un able to determine whether the Father properlyraised th is issue be low. See State v. Boling , 840 S.W.2d 944, 951 (Tenn. Crim. App. 1992) (stating that, pur suant to T .R.A.P. 24 (b), appellant has duty “ to prepare a record which conveys a fair, accurate and complete account of what transpired in the trial court with respect to the is sues which form the bas is of the appeal”); Barnhill v. Barnhill , 826 S.W.2d 443, 458 (Tenn. App. 1991) ( holding that, where appellant failed to make appropriate objection at trial court level, issue was waived on appeal).

We further note that the checks produced by the Father do not necessarily refute the amount testified to by the Mother. One check, dated July1, 1996, and in the amount of $565.20, appears to cover th e Father’s c hild support obligation for the month of July 1996 and, thus, would not have reduced the arrearages amount which existed at th e time of the June 1996 hearing. The other check, dated November 1, 1993, was for $445 and represented a portion of the Father’s November 1993 c hild support obligation.The trial exhibit prepared by the Mother, h owever, indicates that she received a total of $866 in child support from the Father during that month, and the record contains noevidence that this total amountdid not include the $445 check. Accordingly, we deny the Father’s request that the arrearages amount be reduced by the amounts of these two checks.
Finally, we affirm the trial court’s decision to require the Father to pay a portion of the Mother’s attorney’s fees, inasmuch as the Mother successfully pursued her coun ter-9

petition for child support arrearages in the co urt below. Such an award is author ized by Tennessee Code Annotated section 36-5- 103(c), which prov ides that: The plaintiff spous e m ay recover from the defendant spouse, and the spouse or other person to whom the custody of the child, or children, is awarded may recove r from the other spouse reasonable attor ney fees incurred in enforci ng any decree for alimony and/or child s upport, . . . both u pon the original divorce hearing and at any subsequent hearing, which fees may be fixed and allow ed by the court, before whom such action or proceeding is pending, in the discreti on of such court. T.C.A. 36-5-103(c) (1996). As indicated by the s

tatute , and as acknowledged by the Father on appeal, such an award l ies within the discreti on of the trial court. More over, we note that this court specifically has held this statute to be applicable to post
- divorce pr oceeding s to collect child support arrearages. See Sandusky v. Sandusky , No. 01A01-9605-CH-00209, 1996 WL 730288, at **1-2 (Tenn. App. Dec. 20, 1996); Boutin v. Boutin , No. 01A01-9601-CH-00014, 1996 WL 694122, a t *4 (Tenn . App. Dec. 5, 1996); Hall v. Davis , No. 01A01-9404-CV-00146, 1994 WL 514139, at **2-3 (Tenn. App. Sept. 21, 1994).

The Mother also has raised an issue on appeal, contending that the trial court err

ed in failing to award her 3 2% of the $25,307.50 bonus received by the Father upon his voluntarytermination from TVA. The Mother contend s that such a distribution w as mandated by the provision of the final div orce decree which req uired the Father, at the end of each year, to pay 32% of any additional income earned above his regular pa y. The Mother correct ly notes that the bonus received by the Father upon his terminati on constituted income as define d by the Child Support Gui delines. See Tenn. Comp. R. & Regs. tit. X, ch. 1240-2-4-. 03(3)(a) (amended 1994)(defining gross income to include, inter alia , both earned and unearned wages, salaries, bonuses, severance pay,and pensions).

The trial court’s order reveals that, rather than awarding the Mother a share of the b onus, the tri al court considered the Father’s receipt of the entire bonus as a f actor in denying the Father’s request for a reduction in his child support obligation. Specifically, the court recognized that, altho ugh the Father might have experienc

ed a temporary reduction in earning ability upon his termination from TVA, such reduction was more than3 Prior case law indi cated that it was err

or for trial courts to awar d alimony or

child suppor

t based upon a percentage of a commission, bonus, or ot her income that was uncertain and could vary from year to year. Fran klin v. Fra nklin , 746 S.W .2d 715, 7 18 (Te nn. App . 1987); Paul v. Paul , 1988 WL 95272, at *2 (Tenn. App. Sept. 16, 1988 ). In the present case, however, the Father appa rently did not appea l the fi nal divo rce decree containi ng this prov ision. We note that the Chil d Support Guidel ines now provi de thatsuc h var iable income “sho uld be av erag ed an d add ed to the o bligor ’s f ixed salar y.” Tenn. Comp. R. & Regs. tit . X, ch. 1240-2-4-.03(3)(b) (ame nded 1994).

4 Even if the Father earned the bonu s dur ing 19 94, a s the Moth er co nten ds, th e Mo ther’s share was not due a nd pa yable u ntil 19 95, w ithin th irty (30 ) days of the Fath er’s receipt of a W-2 fo rm or other I.R.S. form showing addit ional e arnin gs in e xce ss o f $48 ,000 . Acc ordin gly, it appear s that th is porti on of any arr earages did not ac crue un til after the Fa ther filed his p etition to redu ce in Jan uary 1995

. . 10 compensated by the Father’s recei pt of the $25,307.50 bonus. Rather than g rant the Father a t empora ry reduction in his child support obligation for the months following his termination from TVA, therefore, the trial court permitted the Father to retain the entire bonus.

We do not wish to rewar d the type of fiscal planning whi ch, by deferring income, reduces an obligor’s overall child support obligation. Under the unique facts of this case, however, we affirm the trial court’ s decision to deny the Mother’s claim for 32% percent of the Father’s bonus. 3 Certainly, the tri al court would have a cted within its discretion by granting the Father

a tempor ary reduction in his child support obligati on for the months following his termination fro m TVA whi le he was seeking r eemployment. See, e.g. , Brown v. Heggie , 876 S.W.2d 98, 99-100 (Tenn. App. 1993); see also Virostek v. Virostek , No. 02A01-9601-CH-00019, 19 97WL 224872, at **4-5 (Tenn. App. May 6, 1997). In effect, the trial court’s decision forgives a portion of the arrearages whi ch had accumulated at the time of the hearing. 4

The judgment of the trial court is hereby affirmed. Costs of thi s appeal ar e taxe d to the Fat her, for which execu tion may is sue if ne cessary.

HIGHERS, J.
CONCUR:

FARMER, J.11

TOMLIN, Sr. J

.