                IN THE COURT OF APPEALS OF TENNESSEE

                                                         FILED
PAUL WILLIAM McGAFFIC,                )                December 9, 1997
                                          C/A NO. 03A01-9707-CV-00286
                                      )
          Petitioner-Appellant,       )                  Cecil Crowson, Jr.
                                      )                  Appellate C ourt Clerk
                                      )
                                      )
                                      )
                                      )   APPEAL AS OF RIGHT FROM THE
v.                                    )   HAMILTON COUNTY CIRCUIT COURT
                                      )
                                      )
                                      )
                                      )
                                      )
JANICE ELOIS McGAFFIC,                )
                                      )   HONORABLE WILLIAM L. BROWN,
          Respondent-Appellee.        )   JUDGE




For Appellant                             For Appellee

ROBERT D. LAWSON                          ROBERT J. BATSON, JR.
Lawson & Lawson                           Chattanooga, Tennessee
Chattanooga, Tennessee




                          OPINION




AFFIRMED AND REMANDED                                               Susano, J.

                                  1
            This is a post-divorce case.   Paul William McGaffic

filed a petition seeking to modify his child support and periodic

alimony in futuro obligations.     As pertinent to the issues on

this appeal, the trial court refused to modify its existing child

support and alimony in futuro decrees.     Mr. McGaffic appealed,

raising issues that essentially present the following questions:



            1. Does the evidence preponderate against
            the trial court’s refusal to modify its
            alimony in futuro award by either terminating
            it, or reducing it and/or converting it to an
            award of rehabilitative alimony?

            2. Does the evidence preponderate against
            the trial court’s refusal to modify its child
            support award?



The appellee, Janice Elois McGaffic, argues, by way of separate

issues, (1) that, at the hearing below, Mr. McGaffic abandoned his

request for a reduction in child support, and (2) that she is

entitled to reasonable attorney’s fees for enforcing the trial

court’s judgment on this appeal.



                                   I



            Our review of this non-jury case is de novo upon the

record of the proceedings below; however, that record comes to us

with a presumption that the trial court’s factual findings are

correct.    Rule 13(d), T.R.A.P.   We must defer to this presumption

unless we find that the evidence preponderates against those

findings.    Id.; Union Carbide Corp. v. Huddleston, 854 S.W.2d 87,

91 (Tenn. 1993).    The trial court’s conclusions of law, however,

are not afforded the same deference.       Campbell v. Florida Steel


                                   2
Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett, 860

S.W.2d 857, 859 (Tenn. 1993).



            Our de novo review is tempered by the principle that the

trial court is in the best position to assess the credibility of

the witnesses; accordingly, such credibility determinations are

entitled to great weight on appeal.         Massengale v. Massengale, 915

S.W.2d 818, 819 (Tenn.App. 1995); Bowman v. Bowman, 836 S.W.2d 563,

566 (Tenn.App. 1991).    In fact, this court has noted that



            ...on an issue which hinges on witness
            credibility, [the trial court] will not be
            reversed unless, other than the oral testimony
            of the witnesses, there is found in the record
            clear, concrete and convincing evidence to the
            contrary.



Tennessee   Valley   Kaolin   Corp.    v.   Perry,   526   S.W.2d   488,   490

(Tenn.App. 1974).



                                      II



            When the parties were divorced on October 9, 1989, Ms.

McGaffic was awarded custody of the parties’ three minor children,

and Mr. McGaffic was ordered to pay child support of $1,000 per

month and periodic alimony in futuro of $500 per month.              At that

time, Ms. McGaffic was 39 years old.        She and Mr. McGaffic had been

married for slightly over 20 years.         The divorce was granted on the

ground of cruel and inhuman treatment or conduct.               The divorce

judgment includes the parties’ agreements as to custody, child

support, and alimony in futuro.



                                      3
          By order entered November 10, 1993, Mr. McGaffic’s

child support obligation was reduced, on his petition, to $500

per month because his two older children had then reached the age

of majority.   In the same order, the trial court refused to

reduce the alimony in futuro award of $500 per month.



          The current dispute began when Mr. McGaffic filed a

petition on November 6, 1996, alleging that his “income has

decreased substantially,” and that his former wife “no longer

requires his assistance.”   He asks the court to “adjust child

support payments in accordance with the guidelines and terminate

alimony payments.”   At the hearing below, as an alternative

theory, Mr. McGaffic argued that if the court was not inclined to

terminate the alimony, it should reduce it and/or convert it to

rehabilitative alimony.



                                III



           The appellee argues that Mr. McGaffic abandoned his

request for modification of the monthly child support award of

$500.   She contends that this abandonment can be found in the

remarks of her former husband’s counsel.   We disagree.



           In his opening statement, counsel for Mr. McGaffic made

the following comments:



           We’ve also asked the Court to take a look at
           child support, but quite frankly, Your Honor,
           Mr. McGaffic doesn’t want to pursue that
           strenuously. He’s paying $500 a month child
           support and another $100 for medical and
           dental expenses, which is $600 a month. He’s

                                 4
          not really seriously asking adjustment on
          that if the Court would terminate the
          alimony.

          If the Court doesn’t feel that this is an
          instance for the termination of alimony, then
          we would like the Court to adjust everything
          in accordance with his present ability to
          pay.



In closing argument, Mr. McGaffic’s counsel made the following

statements:



          We think under the present income level that
          he has that we were hoping that the Court
          would cancel the alimony, but if the Court
          doesn’t see fit to cancel it, we think it
          ought to be reduced down to a level that he
          can pay.

          Under his present situation, he’s paying $600
          a month for the upkeep of the child, which is
          more than the guideline would call for, but
          like I said in the beginning, we are not
          really here to challenge that. We are here
          to primarily ask the Court to look at the
          alimony.



          We do not understand counsel’s comments to be an

unconditional, unequivocal abandonment of his client’s request

for a modification of child support.   It is obvious that Mr.

McGaffic was, and still is, more interested in obtaining relief

with respect to his alimony in futuro obligation; but it is clear

that the issue of the appropriate amount of child support was

very much before the lower court.   It was litigated by the

parties, and it is now properly before us on this appeal.     The

appellee’s position to the contrary is without merit.




                                5
                                IV



          In denying Mr. McGaffic any relief, the trial court

made findings that impact our analysis in this case:



          ...the Court is thoroughly convinced from Mr.
          McGaffic’s own testimony that he has the
          ability to earn much more than he’s earning.

                           *    *    *

          ...he has certainly demonstrated the ability
          to earn much more money, and the Court
          believes that, in fact, he is earning more
          money than what he has put on his income and
          expense statement.

                           *    *    *

          But the Court feels that not only does he
          have an ability to earn much more than he
          shows he is earning, I think he is earning
          more.



Thus, it can be seen that the trial court made two important

findings in the context of the issues before us: first, it found

that Mr. McGaffic was actually earning more than he wanted the

court to believe; and second, that, in any event, his testimony,

taken at face value, shows an ability to earn more.    We will

analyze Mr. McGaffic’s issues with these two findings in mind.



                                V



          In a post-divorce proceeding, a court has the power to

“decree an increase or decrease of [an award of spousal support]

only upon a showing of a substantial and material change of

circumstances.”   T.C.A. § 36-5-101(a)(1).   Unless and until a

petitioning party demonstrates a “substantial and material change

                                 6
of circumstances,” the existing award of spousal support is res

judicata.    Hicks v. Hicks, 176 S.W.2d 371, 374-75 (Tenn.App.

1943).



            Prior to 1994, requests to modify child support were

subject solely to the material and substantial change of

circumstances standard.    Id. at 375.   A new standard dealing with

a modification request based on an increase or decrease in an

obligor’s income was introduced by the passage of Chapter 987 of

the Public Acts of 1994:



            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 variance
            has resulted from a previously court-ordered
            deviation from the guidelines and the
            circumstances which caused the deviation have
            not changed.



T.C.A. § 36-5-101(a)(1).    The child support guidelines were

subsequently modified, effective December 14, 1994, to provide as

follows:



            For the 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 variance shall be at
            least 15% if the current support is one
            hundred dollars ($100.00) or greater per
            month...



Tenn.Comp.R. & Regs., ch. 1240-2-4-.02(3).



                                  7
8
                                VI



           In the instant case, the evidence reflects that in

1993, when the issues of child support and alimony were last

“visited” by the trial court, Mr. McGaffic was earning income at

an annual gross rate of $38,256.       At the time, he operated lunch

room concessions in various office buildings in Chattanooga.

Also before the court in 1993 was Mr. McGaffic’s work history,

including a stint as a service advisor at a Ford dealership from

1989 to 1991, when he earned as much as $36,000 gross per year.



           The trial court was not authorized to modify Mr.

McGaffic’s child support obligation unless it found a

“significant variance...between the guidelines and the amount of

support currently ordered.”   T.C.A. § 36-5-101(a)(1).     Under the

child support guidelines, there would be a “significant variance”

downward if the child support produced at Mr. McGaffic’s current

level of income was less than the child support decreed in “the

current support order” by 15% or more.      Tenn.Comp.R. & Regs., ch.

1240-2-4-.02(3).   However, this principle is subject to another

provision of the child support guidelines that is particularly

relevant in the instant case:



           Such [significant] 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...underemployed.



Id.   Also relevant is another provision of the guidelines:




                                   9
            If an obligor is willfully and voluntarily
            ...underemployed, child support shall be
            calculated based on a determination of
            potential income, as evidenced by educational
            level and/or previous work experience.



Tenn.Comp.R. & Regs., ch. 1240-2-4-.03(3)(d).



            Mr. McGaffic testified that his current income is in

the range of $13,300 per year.        He works for a blind individual

who operates a vending concession.          Mr. McGaffic earns $7.00 per

hour at that employment.       He claimed at trial that he was able to

subsist on this income because his wife worked and because they

lived with his father, whose retirement income, of an undisclosed

amount, was available to help defray the household bills.



            There was a great deal of testimony below regarding Mr.

McGaffic’s hobby of competitive drag racing.           He has been

involved in this endeavor since he was 16 years old.             In 1995, he

earned prize money of $17,428, but claimed a net loss for tax

purposes of $7,850; however, ignoring his non-cash depreciation

deduction of $9,520,1 he had a net income from racing of $1,670.



            Ms. McGaffic contended at trial, and argues here, that

her former husband is pursuing his lesser-paying employment

because his current employer permits him to leave early for his

weekend drag racing competition.           While admitting that he

participates in such competition at various sites from March to

October, usually three weekends a month, he attempted to downplay



      1
       Depreciation is not an allowable deduction in calculating self-
employment income. See Tenn.Comp.R. & Regs., ch. 1240-2-4-.03(3)(a).

                                      10
the significance of this hobby vis-a-vis his employment by

testifying that he leaves as early as Wednesday or Thursday

“only” in connection with five or six of his weekend trips.              On

the other occasions, according to him, he leaves after work on

Friday or on Saturday morning.



            Mr. McGaffic’s adult daughter, who had worked with her

father in his current employment for a period of time, testified

that he told her that he wanted to work at his current employment

because his employer allowed him to be off from work when he

needed to leave early for his weekend drag racing competitions.



            The trial court did not believe Mr. McGaffic’s

testimony that his income was limited to $13,300 from his

employment and a net loss from his drag racing hobby of some

$7,850 per year.     This determination was based, at least in part,

on Mr. McGaffic’s testimony that he owned the following assets,

subject to the monthly debt payments shown:



            (1)   1995 Ford Escort, subject to
                  monthly payment of $302.66;

            (2)   1992 Mazda, subject to monthly
                  payment of $220.90;

            (3)   1992 Ford Motor Home2;

            (4)   $9,800 race car;

            (5)   1995 Pace American enclosed car trailer;

            (6)   1989 Kawasaki four-wheel scooter.




     2
       With respect to the 1992 motor home, Mr. McGaffic testified that his
retired 84-year-old father made the monthly payments of $429; however, it is
clear that at least $8,000 of Mr. McGaffic’s money was used as the down
payment for the motor home.

                                      11
The trial court concluded that Mr. McGaffic’s possessions belied

his testimony of meager income.    We do not find that the

testimony regarding the contributions of his wife and father is

sufficient to rebut the trial court’s conclusion.    The facts

before the trial court support that court’s questioning of Mr.

McGaffic’s credibility.    Furthermore, since we did not observe

him when he testified, we are not in a position to disagree with

that court’s assessment of his credibility.    Massengale, 915

S.W.2d at 819.



          More importantly, the trial court found that Mr.

McGaffic had the proven ability to earn more than he is currently

earning, even taking his testimony at face value.    His work

history, as well as the testimony of his daughter, give credence

to such a finding.   The evidence does not preponderate against --

but rather supports -- a finding that Mr. McGaffic is

underemployed because of his desire to engage in his drag racing

hobby.   Furthermore, there is nothing before us to suggest that

Mr. McGaffic cannot pursue his former work as a service advisor

at an automobile dealership.



          In view of Mr. McGaffic’s apparent ability to earn

income at a rate comparable to his 1993 earnings, the evidence

does not preponderate against the trial court’s implicit finding

that there has not been a “significant variance” as defined in

T.C.A. § 36-5-101(a)(1).




                                  12
                                     VII



            We also do not find that the evidence preponderates

against the trial court’s factual findings supporting its

decision not to modify Mr. McGaffic’s alimony in futuro

obligation.    The evidence does not preponderate against a finding

that Mr. McGaffic failed to show a material and substantial

change of circumstances since 1993.



            As we have previously indicated, Mr. McGaffic, because

of his work experience, is capable of earning as much as, if not

more than, the income he earned in 1993.          As to Ms. McGaffic’s

employment, there has been no change in this circumstance -- her

current job is the one she had in 1993, when the issue of alimony

was last reviewed.      She is now a 47-year-old woman with a high

school education plus two college-level computer course credits.

She is the mother of a 13-year-old who basically has no

meaningful contact with his father.3



            The trial court did not abuse its discretion in

refusing to terminate, lower, or convert the nature of, the

alimony previously ordered.



                                    VIII



            The appellee seeks attorney’s fees for enforcing the

trial court’s judgment on this appeal.          Such an award is


      3
       Mr. McGaffic’s almost total lack of visitation with his minor son is
another factor militating against a reduction in child support. See
Tenn.Comp.R. & Regs. 1240-2-4-.04(1)(b).

                                      13
appropriate in this case.   See T.C.A. § 36-5-103(c).   This case

is remanded to the trial court to hold a hearing to determine the

amount of reasonable fees and expenses to which the appellant is

entitled.   See Folk v. Folk, 357 S.W.2d 828 (Tenn. 1962).



            The judgment of the trial court is affirmed.   Costs on

appeal are taxed against the appellant and his surety.     This case

is remanded for further proceedings, consistent with this

opinion, and for collection of costs assessed below, all pursuant

to applicable law.



                                      __________________________
                                      Charles D. Susano, Jr., J.

CONCUR:



______________________
Herschel P. Franks, J.



______________________
Don T. McMurray, J.




                                 14
