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
Free access — add to your briefcase to read the full text and ask questions with AI
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.