                  IN THE COURT OF APPEALS OF TENNESSEE
                      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 CHANCERY COURT OF RUTHERFORD COUNTY
                   AT MURFREESBORO, TENNESSEE
          THE HONORABLE ROBERT E. CORLEW, III, CHANCELLOR



                                    FILED
                                     February 6, 1998

                                    Cecil W. Crowson
JAY B. JACKSON
                                   Appellate Court Clerk
Murfreesboro, Tennessee
Attorney for Appellant



THOMAS D. FROST
Murfreesboro, Tennessee
Attorney for Appellee




AFFIRMED




                                                     ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

TOMLIN, Sr. J.
      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 him to pay a portion of the Mother’s attorney’s fees. We affirm.



      The parties were divorced in 1993. The final divorce decree awarded the Mother

primary physical custody of the parties’ two minor children and ordered the Father to pay

child support to the Mother in the amount of $938.47 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 divorce, the Father, who had a bachelor of science

degree plus two years toward a masters degree, was earning a salary of approximately

$48,000 from his employment with the Tennessee Valley Authority (TVA).



      The final divorce decree also required the Father to pay to the Mother 32% of any

income he received above this amount. Specifically, the decree provided that:

             At the end of each year, [the Father] shall determine whether
             he has earned taxable income above the regular pay in effect
             at the time of the hearing of this cause, including outside
             business income, and pay 32% of such additional income to
             [the Mother]. As to outside income it is understood that
             legitimate and lawful business expenses can be deducted.
             Any additional monies shall be due and payable within 30 days
             from receipt of W-2 forms or other I.R.S. forms showing other
             earnings of each and every year. Upon request, [the Father]
             shall provide copies of his yearly tax return or wage
             statements.


      In 1994, TVA informed its employees that it planned to reduce its work force

significantly. Specifically, TVA planned to reduce the Father’s department, Information

Systems, from about 1050 employees to 700 employees. In order to achieve this reduction

in force without firing employees, TVA offered its employees three “early-out” options. The

Father, concerned for his job security, 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 October 1994, he was earning in excess of $50,000. The Father’s gross termination

pay, therefore, was $25,307.50.




                                            2
       The month following his voluntary termination from TVA, the Father unilaterally

reduced his monthly child support payments to the Mother. Rather than looking for a

comparable position with another entity, the Father decided to start his own computer

business. According to the Father, TVA paid its employees significantly more than private

companies, and he did not want to take a pay cut. The Father admitted, however, that he

previously earned more with a private company than he did at TVA and that, if he had

found a comparable position, he could have expected to earn at least $40,000. In the two

years prior to his termination, the Father earned in excess of $57,000 and $68,000,

respectively.



       Rather than immediately accepting his termination pay, the Father was able to defer

payment until after January 1, 1995. Taking the position that he did not actually earn this

money until 1995, the Father did not pay the Mother 32% of his termination pay. The

Father received a net bonus of $16,285, 32% of which was $5,211. The Father used this

money to support himself and his new wife and to finance their new computer business.



       In January 1995, the Father also filed this petition to reduce his monthly child

support obligation. As grounds therefor, the Father asserted that he was “involved in a

new corporation and [was] currently earning $1,000 per month, substantially less than that

earned at the time of the [final divorce decree].” The Mother filed a counter-petition

seeking a judgment for child support arrearages and other relief.



       The hearing did not take place until June 1996, eighteen months after the Father

filed his petition. At the time of the hearing, the Father still was operating his computer

business. The business, however, was not profitable, and the Father contended that he

still was unable to pay child support at the amount previously established. The Father

testified that he eventually would seek outside employment if the business was not

profitable but that he was “not ready to give it up yet.” The Father still believed that the

business had the potential to make a lot of money, and he was “working very hard to turn

the business around.” The Father planned to make a decision on whether to continue



                                             3
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 because he would not be able to borrow any more money.

The Father testified that a lending institution had denied his request for a business loan

and that he almost had reached the credit limits on his various credit cards.



        Although the Father reported only a small income from his computer business, the

business also compensated the Father and his wife for certain expenses. The business,

which rented office space in the wife’s garage, paid at least $300 of the wife’s $800

monthly house note, and the business paid over $500 in expenses every month for the

Father’s car. In addition, the Father’s wife was paid a small salary by the business.



        At the hearing’s conclusion, the trial court entered an order denying the Father’s

petition for modification and awarding the Mother child support arrearages in the amount

of $6,379.89; however, the trial 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 allowed 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 difference between $550.00 and

the $938.47 previously ordered accruing as a permissible arrearage.” The Mother was

awarded a judgment of $2,000 for a portion of her attorney’s fees. Finally, the trial court

denied the Mother’s request to modify the visitation schedule previously ordered.1



        On appeal from the trial court’s order, the Father has raised the following issues for

this court’s review:

                 1.      Whether the trial court erred when it concluded that the
                         [Father’s] petition to reduce child support should be
                         denied.

                 2.      Even if [the Father] is considered willful[ly] and
                         voluntarily underemployed, [whether] the trial court
                         erred in failing to make an expressed factual
                         determination as to [the Father’s] earning potential.



        1
          Although not included in the Mother’s counter-petition, this issue apparently was tried by consent of
the parties .

                                                      4
                  3.       Whether the trial court abused its discretion when it
                           required [the Father] to pay $2,000 toward the
                           attorney’s fees of [the Mother].

                  4.       Whether the trial court erred when it awarded [the
                           Mother] a judgment for child support arrearage.



         Trial courts are required to modify an obligor’s child support obligation only when a

“significant variance” exists between the amount of support required by the Child Support

Guidelines and the amount of the current support obligation. State ex rel. McAllister 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 generally will be entitled to such modification by demonstrating the

existence of a significant variance, usually defined as at least fifteen percent. See Tenn.

Comp. R. & Regs. tit. X, ch. 1240-2-4-.02(3) (amended 1994). 2 Where the evidence shows

that the obligor is “willfully and voluntarily unemployed or underemployed,” however, the

obligor is not entitled to a downward modification of his support obligation. Id.



         The guidelines direct trial courts to determine the amount of support required by the

guidelines “based 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 “willfully and

voluntarily unemployed or underemployed,” however, rather than awarding child support

based on an obligor’s actual income, trial courts are required to award child support “based

on a determination of [the obligor’s] potential income, as evidenced by [his or her]

educational level and/or previous work experience.” Tenn. Comp. 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 (Tenn. App. Oct. 3, 1996); Renick v. Renick, No.

01A01-9007-CV-00263, 1991 WL 99514, at *6 (Tenn. App. June 12, 1991), perm. app.

denied (Tenn. Nov. 4, 1991).




         2
          The guidelines provide that, for “purposes of defining a significant variance between the guideline
amount and the current support order pursuant to T.C.A. § 36-5-101, a significant varia nce shall be at least
[fifteen percent] 15% if the current support is one hundred dollars ($100.00) or greater per month and at least
fifteen 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. tit. X,
ch. 1240-2-4-.02(3) (am ended 1994).

                                                          5
          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 hearing. We believe that this finding is sufficient to support the

imputation of income to the Father for purposes of determining his child support obligation.

See Barnes v. Barnes, No. 02A01-9403-CH-00033, 1995 WL 114171, at **6-7 (Tenn. App.

Mar. 17, 1995) (affirming child support award based on imputed income where trial court

specifically found that father had ability to produce more income than he did at time of

trial).



          Moreover, we conclude that the evidence supports the trial court’s decision to

impute income to the Father. At the hearing below, the Father acknowledged that he was

capable of earning more income than he currently 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 records for that year showed that he actually earned in excess of

$57,000, which included income from another employer which paid him a higher salary

than did TVA. The Father testified that, when he left TVA, he consciously chose not to

seek a comparable position with another employer because he planned to start 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 claimed that he could not have earned

as much with another employer as he did at TVA; however, this testimony was contradicted

by his own acknowledgement that in 1992, when he was working for a private contractor,

he earned over $65,000 from this employer, more than he ever earned at TVA. Based on

the foregoing evidence, we affirm the trial court’s decision to deny the Father’s request for

a reduction in his child support obligation based on the court’s finding that the Father’s

earning capacity was greater 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 child support based on potential income where father possessed

bachelor of science degree from university, voluntarily left employment where he was

earning $28,000 annually, and unsuccessfully attempted to earn living as farmer);

Renick v. Renick, No. 01A01-9007-CV-00263, 1991 WL 99514, at *6 (Tenn. App. June 12,



                                                 6
1991) (remanding for determination of potential income where father claimed that his

actual income was 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); Gutknecht v.

Gutknecht, No. 01A01-9101-CH-00015, 1991 WL 79560, at *1 (Tenn. App. May 17, 1991)

(affirming trial court’s award of child support based on potential income where father

conceded at trial that he was capable 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 erred in imputing income where father was forced to leave job earning $55,000

when his position was eliminated and he thereafter unsuccessfully sought comparable full-

time position).



       On appeal, the Father contends that the record does not support a finding of willful

and voluntary underemployment because no evidence was presented that the Father’s

employment decision was made with the specific intent to escape his child support

obligation. This court previously has rejected this interpretation of willful underemployment

as used in the Child Support 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
              of the policies underlying the guidelines and applicable case
              law, we hold that there is no requirement that there exist
              evidence of an obligor’s intent to avoid support obligations in
              order to impute income to the obligor based upon his or her
              potential income.

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

App. 1996).



       We also reject the Father’s contention that our decision in Herrera v. Herrera, 944

S.W.2d 379, 387 (Tenn. App. 1996), requires us to remand this case for a specific

determination of the Father’s potential income. At the hearing, the Father testified that his

salary was $48,000 at the time of the divorce when his initial support obligation was set at

$938.47 pursuant to the Child Support Guidelines. Implicit in the trial court’s decision to

deny the Father’s request for a reduction is the finding that the Father’s potential income

has not decreased from the amount he was earning at the time of the divorce, $48,000.


                                              7
Inasmuch as the record contains evidence to support this figure, we decline to disturb the

trial court’s decision to deny the Father’s petition.



       In light of our affirmance of the trial court’s decision, we likewise affirm the court’s

award of $6,379.89 in child support arrearages to the Mother. The Mother testified that this

was the correct amount of arrearages at the hearing held in June 1996, and she introduced

an exhibit showing all amounts paid since the divorce. 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 note, however, that no transcript of such a hearing

appears in the record on appeal and, thus, we are unable to determine whether the Father

properly raised this issue below. See State v. Boling, 840 S.W.2d 944, 951 (Tenn. Crim.

App. 1992) (stating that, pursuant 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 issues which form the basis 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 July 1, 1996, and in the amount

of $565.20, appears to cover the Father’s child support obligation for the month of July

1996 and, thus, would not have reduced the arrearages amount which existed at the 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 child support obligation. The trial

exhibit prepared by the Mother, however, indicates that she received a total of $866 in child

support from the Father during that month, and the record contains no evidence that this

total amount did 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 counter-



                                              8
petition for child support arrearages in the court below. Such an award is authorized by

Tennessee Code Annotated section 36-5-103(c), which provides that:

                        The plaintiff spouse may recover from the defendant
                spouse, and the spouse or other person to whom the custody
                of the child, or children, is awarded may recover from the other
                spouse reasonable attorney fees incurred in enforcing any
                decree for alimony and/or child support, . . . both upon the
                original divorce hearing and at any subsequent hearing, which
                fees may be fixed and allowed by the court, before whom such
                action or proceeding is pending, in the discretion of such court.

T.C.A. 36-5-103(c) (1996). As indicated by the statute, and as acknowledged by the

Father on appeal, such an award lies within the discretion of the trial court. Moreover, we

note that this court specifically has held this statute to be applicable to post-divorce

proceedings 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, at *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 erred

in failing to award her 32% of the $25,307.50 bonus received by the Father upon his

voluntary termination from TVA. The Mother contends that such a distribution was

mandated by the provision of the final divorce decree which required the Father, at the end

of each year, to pay 32% of any additional income earned above his regular pay. The

Mother correctly notes that the bonus received by the Father upon his termination

constituted income as defined by the Child Support Guidelines. 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

bonus, the trial court considered the Father’s receipt of the entire bonus as a factor in

denying the Father’s request for a reduction in his child support obligation. Specifically, the

court recognized that, although the Father might have experienced a temporary reduction

in earning ability upon his termination from TVA, such reduction was more than


                                               9
compensated by the Father’s receipt of the $25,307.50 bonus. Rather than grant the

Father a temporary 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 reward the type of fiscal planning which, 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 trial court would have acted within its discretion by

granting the Father a temporary reduction in his child support obligation for the months

following his termination from TVA while he was seeking reemployment. 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, 1997 WL 224872, at **4-5 (Tenn. App. May 6, 1997). In

effect, the trial court’s decision forgives a portion of the arrearages which had accumulated

at the time of the hearing. 4



         The judgment of the trial court is hereby affirmed. Costs of this appeal are taxed

to the Father, for which execution may issue if necessary.




                                                                                     HIGHERS, J.



CONCUR:



FARMER, J.

         3
          Prior case law indicated that it was error for trial courts to award alimony or child support based upon
a percentage of a commission, bonus, or other 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 apparently did not appeal the final divorce decree
containing this provision. We note that the Child Support Guidelines now provide that suc h var iable income
“sho uld be av erag ed an d add ed to the o bligor ’s fixed salary.” 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 appears that this portion of any arrearages
did not ac crue un til after the Fa ther filed his p etition to redu ce in Jan uary 1995 . .

                                                            10
TOMLIN, Sr. J.




                 11
