        IN THE COURT OF APPEALS OF TENNESSEE, WESTERN SECTION
                             AT JACKSON

             _______________________________________________________

                                    )
KIMBERLY LYNN HYDEN,                )     Decatur County Chancery Court
                                    )     No. 2285


VS.
   Plaintiff/Appellant.             )
                                    )
                                    )     C.A. No. 02A01-9611-CH-00273
                                                                        FILED
                                    )
                                                                     September 25, 1997
JOHN CARL HYDEN,                    )
                                    )
                                                                      Cecil Crowson, Jr.
   Defendant/Appellee.              )                                 Appellate C ourt Clerk
                                    )
______________________________________________________________________________

From the Chancery Court of Decatur County at Decaturville.
Honorable Walton West, Chancellor



Carthel L. Smith, Jr., Lexington, Tennessee
Attorney for Plaintiff/Appellant.


K. Don Bishop, SPRAGINS, BARNETT, COBB & BUTLER, Jackson, Tennessee
Attorney for Defendant/Appellee.



OPINION FILED:

AFFIRMED AND REMANDED


                                           FARMER, J.

HIGHERS, J.: (Concurs)
INMAN, Sr. J.: (Concurs)
               This appeal involves a petition to modify child support filed by the appellant,

Kimberly Lynn Hyden (“Mother”) against the appellee, John Carl Hyden (“Father”). After a hearing,

the chancellor entered a final judgment increasing Father’s monthly child support obligation, for

benefit of the parties’ three minor children, from $300 to $500 based upon the trial court’s

computation of a gross monthly income of $1,500.1 Mother has appealed, contending that the trial

court failed to consider all relevant factors in determining Father’s income, including his willful and

voluntary underemployment, and that the trial court should have imputed a minimum annual income

of $25,761 based upon provisions of the child support guidelines. For the reasons set forth below,

we affirm and remand.



               The parties were divorced by final decree entered in September 1993. The decree set

Father’s child support at $300 per month based on the fact that he was attending college and only

working part-time. At the May 1996 hearing on this matter, Mother testified that the costs for caring

for the parties’ three children, ages 9, 7 and 6 at the time, had increased 30 to 40 percent. These

costs include $130 per week for child care; $285 per month for their health insurance; $60 per month

for life insurance; $45 per week for school activities and expenses; and $350 per month for the

children’s clothing. There are also additional expenses for the medical care of the parties’ youngest

child, diagnosed with attention deficit disorder, in the amount of $115-$165 per month. It has been

recommended that this child undergo counseling for the disability which, according to Mother, will

cost approximately $225 per month. Mother stated that she receives financial assistance from her

present husband regarding the children’s care. She is self-employed, but stated that her business,

“We Care Home Services,” which she described as a “commercial and medical company,” was

“brand new” and currently operating at a loss.



               Mother testified that when the parties first married, Father was in the trucking

business. Shortly thereafter, he made the decision to continue his education to become an ordained

minister, with Mother’s encouragement. They moved to Parsons where Father served as pastor of

a local church. Father enrolled at Bethel College in August 1992. Mother worked and also attended

college. At the time of their divorce, Father remained a student at Bethel College. He graduated in


       1
        The Tennessee Child Support Guidelines provide for a child support award of $501, for
three children, where the obligor’s gross monthly income is $1,500. See appendix.
May 1995 with a Bachelor of Arts degree. He then entered the Memphis Theological Seminary in

the fall of that year as a full-time student.



                Father testified that he has remarried and that his present wife, who has custody of

three minor children, primarily supports him. He makes no routine financial contribution to his

present household. The money he earns is subject to disposal as he sees fit.



                Father stated that he must earn 21 credit hours to fulfill his requirements in the

seminary, which he hopes to accomplish in three years. He explained that 75% of his school tuition

is paid through a ministerial scholarship. He is also given an allowance for books. He attends

classes two days a week, six hours a day. He was “stative supply” at two area churches until August

1995 when he resigned those positions to seek a full-time student pastor position. His attempts to

obtain such employment have been unsuccessful. He stated that during the past year, he sought

employment in this capacity at approximately 30 different area churches where the job interview

mainly took the form of a trial sermon. He conducted trial sermons at various churches every week

but one during the year and was compensated for each sermon, on average, $125. Father stated that

it is possible to earn $750 to $1,000 per month as a student pastor. He explained, however, that

within his denomination there are no established guidelines for pay and that remuneration depends

upon the size and viability of the church. Father was not ministering anywhere at the time of trial.

He said that he had also “sought employment at at least 30 or 40 different places in various areas,”

but without success



                Father testified to two “summer jobs” he presently holds: a cargo handler for Federal

Express, earning $6.98 per hour at 17-1/2 hours per week and a truck driver for Ozark Motor Lines,

earning $9.75 an hour for 10 hours per week. Father intends to remain a full-time student in the

seminary (attending fall and spring semesters), but stated that he would continue his position at

Federal Express on a part-time basis if given the opportunity.



                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 also received financial assistance from his family. In January 1996, Father filed
Chapter 7 bankruptcy. His petition listed his net monthly income at $541.67 with assets of $2,700

and liabilities totaling approximately $42,000.2



               Based upon the foregoing evidence, the trial court ruled from the bench as follows:



               [T]he Court’s of the opinion that the children ought to come first, as
               far as parents are concerned and when it comes to choices in life I’m
               of the opinion that we just simply have to put our children first.
               Above education, above recreation, above just about anything else I
               can think of.

                       And so, while I respect someone who seeks to enhance their
               education . . . . If it conflicts with supporting the children I believe
               the children need to take priority.

                      The evidence in this case reflects that [Father], at least based
               on his present employment should be able to earn approximately
               $8.50 an hour on average. He should be able to have a gross income
               approximately $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 times 52
               is $17,680.00 a year 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 trial court erred in its holding.

Mother asserts that the trial court erroneously based its decision on Father’s average hourly rate

regarding his present part-time employment positions and failed to take into consideration his college

degree, earning capacity or previous work experience. She insists that the trial court should have

imputed to Father the minimum annual income of $25,761 which she argues is required under the

child support guidelines in instances of intentional unemployment or underemployment.



               As to the monetary amount suggested, Mother apparently refers to Tenn. Comp. R.

& Regs. title 1240, ch. 2-4-.03(3)(e) which states:



       2
       We note somewhat curiously that Appellee’s petition, in listing his monthly
expenditures, does not include any amount for child support.
               When establishing an initial order and the obligor fails to produce
               evidence of income (such as tax returns for prior years, check stubs,
               or other information for determining current ability to support or
               ability to support in prior years), and the court has no other reliable
               evidence of the obligor’s income or income potential, gross income
               for the current and prior years should be determined by imputing
               annual income of $25,761.



We find this section of the child support guidelines inapplicable here as it plainly refers to those

cases “establishing an initial order” of child support and those instances where the obligor has failed

to show any evidence of income, rendering the trial court without any reliable evidence regarding

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 decree

of divorce which Mother now seeks to modify and the trial court clearly had before it evidence of

Father’s annual earnings for recent years.



               We note that subsection (f) of the regulation addresses those cases where “established

orders are reviewed for adjustment.” It provides for an increase in the obligor’s child support

obligation “by an increment not to exceed [10%] per year for each year since the support order was

entered or last modified.” We find this section equally inapplicable as it, too, pertains to those

instances where the obligor has failed to produce any evidence of income so that the court has no

reliable evidence on which to base a decision.



               When calculating child support awards, chapter 2-4-.03(3)(d) states: “[i]f an obligor

is willfully and voluntarily unemployed or underemployed, child support shall be calculated based

on a determination of potential income, as evidenced by educational level and/or previous work

experience.” Although the trial court made no express determination that Father is willfully or

voluntarily underemployed, we find the court’s decision to necessarily imply such finding. The trial

court determined that Father “has the capability of earning $8.50 an hour . . .” and proceeded to set

child support based upon Father being employed full-time at this hourly rate. It was Father’s

testimony that he intends to work only part-time until completion of his pastoral studies and

graduation from the seminary. Clearly, the trial court did not base its decision on such part-time

employment status. Therefore, we conclude that the trial court implicitly found Father willfully

underemployed.
               The question then becomes whether the trial court’s increase in child support is based

on an accurate assessment of Father’s “potential income,” as evidenced by his level of education

and/or prior work experience. Mother asserts that the evidence establishes a much higher earning

capacity than $8.50 an hour. The record indicates that at the beginning of the parties’ marriage,

Father was employed in the trucking business before pursuing a college education in religion. While

he possesses a Bachelor of Arts degree, it is not disputed that he has found difficulty obtaining a

student pastor position and that until completion of his pastoral studies he cannot seek permanent

employment as an ordained minister.



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

accompanied by a presumption of correctness unless the evidence preponderates otherwise. Rule

13(d) T.R.A.P. We do not find the record to preponderate against the trial court’s determination

regarding Father’s present earning capabilities or “potential income.” Father’s present employment

appears commensurate with his prior work experience based on the record before us. Accordingly,

we find that the trial court properly established Father’s gross monthly earnings at $1,500.



               T.C.A. § 36-5-101(a)(1) provides, in part:



               In cases involving child support, upon application of either party, the
               court shall decree an increase or decrease of such allowance when
               there is found to be a significant variance, as defined in the child
               support guidelines established by subsection (e), between the
               guidelines and the amount of support currently ordered unless the
               variants has resulted from a previously court-ordered deviation from
               the guidelines and the circumstances which caused the deviation have
               not changed.



The guidelines define a “significant variance” as “at least 15% if the current support is one hundred

dollars ($100.00) or greater . . . .” Tenn. Comp. R. & Regs. Title 1240, ch. 2-4-.02(3). Under the

present circumstances, a significant variance is clearly shown to exist between the amount currently

awarded and that as established under the guidelines for an obligor with earnings or “potential”

earnings as that of Father.



               We conclude that the trial court’s modification of Father’s child support obligation
from $300 to $500 was proper. The judgment is, accordingly, affirmed and this cause remanded for

any further necessary proceedings. Costs are taxed to the appellant, for which execution may issue

if necessary.



                                                    ____________________________________
                                                    FARMER, J.



______________________________
HIGHERS, J. (Concurs)



______________________________
INMAN, Sr. J. (Concurs)
