### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 2000 Session
KELLYE WAIR WILSON v. PAUL DAV ID WILSON Appeal from the Circuit Court for Davidson County No. 95D-3581 Muriel Robinson, Judge

No. M1999-02045-COA-R3-CV - July 31, 2000

This is an appeal from the trial court’s refusal to modify Mr. Wilson’s child support obligation after he was terminate

d from his place of

employment.

We reverse the tr

ial court’s judg

ment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Reversed and Remanded
B EN H. C ANTRELL , P.J., M.S ., delive red the opinion of the court, in which W ILLI AM B. C AIN and P ATRICIA J. C OTTRELL , JJ., joined.
Dana C. McLendon III

, Franklin, Tennessee, for the appellant, Paul David Wilson. D. Scott Parsley, Nashville, Tennessee, for the appellee, Kelly e Wair Wilson.
OPINION
In 1996, Ms. Wilson was granted a divorce from Mr. Wilson on the grounds of inapp ropriate marital conduct on Mr. Wilson ’s part. The parties had one child. In the final de cree of divorce

, Ms. Wilson was granted primary custody of the child and Mr. Wilson was ordered to pa y $1,135.00 in child support per month a

nd to pay the

child’s insuranc

e premiums

as well as all uninsured medical and dental expenses. At the time of the divorce decree, Mr. Wilson was employ ed as the business manager of a car dealership and earned $121,562.65 that y ear.
In October of 1998, Mr. Wilson’s employment w as terminated af

ter accusations

that he sold extended warranties to customers and failed to tender the proceeds fr

om those warranties to the car dealership. Mr. Wilson subsequen tly filed a petition requesting a termination or r eduction in child support until he is able to obtain new employment.
A hearing was held in May of 1999 on the issue of reduction of child support and any arrearagesdue and owing to Ms. Wilson. Mr. Wilson, the only witness at the hearing, testified regarding the state of his finances since the termination of his employment in October of 1998.In-2-

January of 1999, Mr. Wilson accepted a job with another car de alership in the sales and leasing department. This job had a salary guarantee of only $4,000.00 per m onth. This sa lary guarantee effectively

meant that if Mr. Wilson did not earn the entire $4,000.00 in commissions, the car dealer would loan Mr. Wilson the difference between t he amount a

ctually earned and the $4,000.00 guaranteed

salary. At the time of trial, Mr. Wilson had borrowed a total of $7,200.00 from the car dealership base

d on this salary

guarantee an

d had earned an a

dditional $9,544.13

in commissions. Mr. Wilson testified that he was unable to afford to pay his current household expenses and other bills. In addition, Mr. Wilso n had taken o ut a second m ortgage on his home and was behind on the mortgage payments. H

e also te stified th at he had charged the maximum allowable amount on at least one of his credit cards and had obtained a personal loan for $15,000.00.
After hearing the pr

oof, the trial cou

rt iss ued an order finding th at Mr. Wilson owed ch

ild support arrearage s in the amount of $8,220.00. The trial c ourt further fou

nd that Mr. Wils on was “the maker of his own financ ial trouble s as a result of his dishonest actions at his former place of employment”

and denied Mr. Wilson’s request for a termination or reduction in child support. Mr. Wilson now appeals.
We first note that our r eview of a child support order is de novo on the record. The trial court’s findings of fact are presumed correct “unless the preponderance of the evidence i s otherwise.” Tenn. R. App. P. 13(d). No pre sumption o f correctness attaches to the trial court’s conclusions of law. Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995).
In a case involving the modification of a child support order, the pro per standard is the “significant

variance test” adopted

by the General Assembly in 1994. Turner v. Turner , 919 S.W.2d 340, 342-43 (Tenn. Ct. App. 1995). The statute provides that
In cases involving child support, upon applica tion of either party

, the court shall decreean increase or decrease of such allowance when there is found to be a significant

variance, as defined in the child support guidel in es . . . between the guidelines and the amoun t of supp ort currently ordered unless the variance has resultedfrom a previously court-ordered

deviation from the

guid e lines and the circumstances which caused the deviation have not changed. Tenn. Code Ann. § 36-5-101(a) (Supp. 1999).
The child support guidelines are promulgated by the Department of Human Services and are generally basedon a flat percentage of the obligor’s net income. A significant variance between the amount set outin the guidelines and the current support obligation is defined as “at least 15% if the current support is one hundred dollars ($100.00) or greater per month” and “[s]uch variance would justify the modification of a child support order unless, in situations where a downward modification is sought, the obligor is willfully and voluntarily unemploy ed or underemployed.” Tenn. Comp. R. & Regs. 1240 -2- 4-.02(3). Where an obligor is willfully and voluntarily une mployed or underemployed, child support is calculat ed based o n a determination of potential income as-3-

evidenced

by the obligor’s educational level and/or previous work experience. Tenn. Comp. R. & Regs. 1240-2-4-.03(d).
In the case at bar, the evidence established that at the time of the divorce decree Mr. Wilson was earning approximately $10,130.00 per month. However, at the time of t r ial, Mr. Wilson was earning only $4,000.0

0 per month. Clear

ly there wa

s a significant variance in Mr. Wilson’s income.
We must next determine if, i

n spite of the significant variance in Mr. Wilson’s income, such varianceis a result of willfu l and voluntary unemployment or underemploy ment. The evidence established that Mr. Wilson’s employment was terminated

after accusations that he sold warranties to customers and failed to render the proceeds of those warranties to his employer. Although Mr. Wilson had not been indicted as of the time of the trial, exhibits to the appellate record establish that he later pled guilty to several count s o f theft of property. Ms. Wilson contends that, because Mr. Wilson’s criminal actions were wil lful and voluntary

, he is willfully and voluntarily underemploy ed.
We do not think that any time an obligor pare

nt is fired for misc

onduct he or she is

willfully unemployed

under that provision of

the child support guidelines. Although there is no requirement that a parent intended to avoid their child support obligations by their actions , we do think that willful or voluntary

unemploymen

t or undere mployment must result from an intent on the part of the parent to reduce

or terminate

his or her income. See Ralston v. Ralston , No. 01A01-9804-CV00222, 1999 WL 562719 at ftn. 1 (Tenn. Ct. App. Aug. 3, 1999). There is nothing in the re

cord to indicate that Mr. Wilson int ended to lose h is job when he committed these criminal acts, and the record establishes that

he had little or no choice in taking a lower paying job after the allegations of theft were made against him. Furthermore, there is no evidence that hetook a lower pay ing job in order to escape his child

support obligation. In light of the foregoing, we find that the rec ord does not support a finding that Mr. Wilson was willfully or voluntarily unemploy ed or underemployed. Con seq uen tly, the trial court’s award of child support based on Mr. Wilson’s potential income rather than his actual income is reversed.
At trial, Mr. Wilson testified that he was earning $4,000.00 per month in income. However, there was no specific finding of fact made by the trial court re garding Mr. Wilson’s actua l net income. The refore, w e remand this case to the trial court to determine Mr. Wilson’s actual net income and make an award

of child support ba

sed on this income

rather than the income he enjoyed at the time of the divorce. The modification, if any, woul d relate back to the time Mr. Wilson’s petition was filed in November of 1998.
The judgment of the tr

ial court is

reversed, and

the cause remanded to the Circuit Court for Davi dson County for any further proce edings necessary. Tax the costs on appeal to the appel lee , Kellye Wair Wilson.

__________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.-4-