Vicky v. Klein ( 1996 )

Synthia Jo Gaines Benson, )
) Appeal No.
Petitioner/Appellee, ) 01-A-01-9601-CV-00043
)
v. )
)
John Thomas Benson, IV, ) Circuit Court No.
) 89D-4274
Respondent/Appellant. )
FILED
May 31, 1996
Cecil W. Crowson
Appellate Court Clerk
COURT OF APPEALS
MIDDLE SECTION AT NASHVILLE
APPEAL FROM THE FOURTH CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE MURIEL ROBINSON, JUDGE
VICKY V. KLEIN
509 Lentz Drive
Madison, Tennessee 37116-0608
ATTORNEY FOR RESPONDENT/APPELLANT
JOHN M. L. BROWN
221 Fourth Avenue North
Second Floor
Nashville, Tennessee 37219
PHILIP E. SMITH
213 Third Avenue North
Nashville, Tennessee 37201
ATTORNEYS FOR PETITIONER/APPELLEE
AFFIRMED, MODIFIED, AND REMANDED
SAMUEL L. LEWIS, JUDGE
OPINION
This is an appeal by respondent/appellant, John Thomas
Benson, IV, from a decision of the trial court that awarded
petitioner/appellee, Synthia Jo Gaines Benson, $4,299.83 for
child support arrearages, $3,946.92 for the college expenses of
the parties' son, John Thomas Benson, V, and $750.00 for
attorney's fees. The pertinent facts are as follows.
The Fourth Circuit Court of Davidson County entered a final
decree of divorce as to the parties on 16 April 1990. The decree
incorporated a marital dissolution agreement (“MDA”) which
provided that Appellant would pay child support of $200.00 every
two weeks until the parties' son turned eighteen or graduated
with his normal high school class. In addition, the MDA
obligated Appellant to pay the son's reasonable college expenses.
On 21 October 1994, Appellee filed a petition for contempt
of court and for breach of contract. The claims in the petition
concerned three different time periods. The first was April 1990
to January 1994. Appellee claimed that, during this time,
Appellant accumulated an arrearage of $3,166.51 as a result of
two actions. First, he paid $400.00 per month instead of $200.00
every two weeks resulting in a $33.33 monthly shortfall. Second,
he failed to pay any support for four months.
The second period was February 1994 to June 1994. Appellee
claimed that Appellant did not pay child support for the five
month period and that he owed $2,166.65. During this time, the
son was an inpatient at Cumberland Heights. Upon leaving this
facility, the son moved into a halfway house in Atlanta, Georgia.
Appellant paid $7,577.00 to Cumberland Heights and the halfway
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house for his son’s expenses. Appellant then insisted that he
deserved a credit for those payments against his child support
obligation.
The third period was the Fall of 1994 to the Winter of 1995.
During this time, the son attended Georgia State University.
Appellee asserted that Appellant breached the contract when he
refused to pay the son's reasonable college expenses. Appellant
claimed he did not know his son had enrolled in college. He
further noted that during the Fall 1994 and Winter 1995 quarters,
the son was enrolled part-time as a pre-freshman and took
remedial courses only.
Appellant filed a counter-petition with his answer, but
later took a voluntary dismissal. On 23 May 1995, the court
entered an order in which it awarded Appellee $2,133.18 for the
arrearage accrued from April 1990 through January 1994, $2,166.65
for the arrearage accrued from February 1994 through June 1994,
$2,858.26 for the son’s tuition and books, and $1,088.66 for the
son’s room at college. The court also ordered Appellant to pay
wife’s attorney $750.00 and dismissed the contempt charge.
On 18 August 1995, the court denied Appellant’s “motion to
alter or amend or for a new trial.” The basis of the motion was
that the son's courses at Georgia State were remedial and not for
credit and that the MDA only required Appellant to pay college
expenses. Appellant filed his notice of appeal as to both orders
on 15 September 1995. On appeal, Appellant asked this court to
address the following issues:
I. Whether the father is entitled to a credit against
a child support arrearage for his payment of the
child’s necessary expenses which were not being
paid by the custodial parent.
II. Whether the father is contractually obligated to
pay college tuition, room, and books:
A. When the child is not enrolled as a full-time
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student.
B. When the child is taking remedial courses and
is receiving no college credit therefore.
Appellant has not appealed that portion of the trial court's
order awarding appellee arrearages for April 1990 to January
1994. We address Appellant's issues as presented.
Tennessee's courts have held that trial courts may award
parents who are obligated to make child support payments credit
for voluntary payments made on behalf of the children. The
payments must be for the children's necessaries that the other
parent either failed to provide or refused to provide. Hartley
v. Thompson, No. 01-A-01-9502-CV-00044, 1995 WL 296202, at *3
(Tenn. App. 17 May 1995); Foust v. Foust, No. 03-A-01-9202-CH-61,
1992 WL 145007, at *1 (Tenn. App. 29 June 1992); Oliver v.
Oczkowicz, Davidson Law No. 89-396-II, 1990 WL 64534, at *2
(Tenn. App. 18 May 1990). One objection to this rule is that
allowing credits to parents who have defaulted on their child
support obligations violates Tennessee Code Annotated section 36-
5-101(a)(5).1 Despite this objection, the courts have held that
giving parents a credit against their child support arrearages
does not violate this code section. Hartley, 1995 WL 296202, at
1
That section provided as follows:
Any order for child support shall be a judgment entitled to be
enforced as any other judgment of a court of this state and shall
be entitled to full faith and credit in this state and in any
other state. Such judgment shall not be subject to modification
as to any time period or any amounts due prior to the date that an
action for modification is filed and notice of the action has been
mailed to the last known address of the opposing parties.
Tenn. Code Ann. § 36-5-101(a)(5) (1991). In 1994 the General Assembly amended
this provision by adding language to the end of the section. The new language
provided:
If the full amount of child support is not paid by the fifth (5th)
day of the month following the month in which the ordered support
is due, the unpaid amount is in arrears and shall become a
judgment for the unpaid amounts and shall accrue interest from the
date of the arrearage at the rate set in section 47-14-121.
Computation of interest shall not be the responsibility of the
clerk.
1994 Tenn. Pub. Acts ch. 987 §4. The General Assembly amended this section
again in 1995. 1995 Tenn. Pub. Acts ch. 504 §2.
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*3; Netherton v. Netherton, No. 01-A-01-9208-PB00323, 1993 WL
49556, at *2 (Tenn. App. 26 Feb. 1993); Sutton v. Sutton, No.
180, 1991 WL 16234, at * 1 (Tenn. App. 12 Feb. 1991).
Specifically, this court has acknowledged that the statute
prohibits retroactive modifications of child support payments.
As for credits, however, this court has held that they are not
modifications. Instead, the credit recognizes that the obligor
parent provided the support the court ordered in the first place.
Netherton, 1993 WL 49556, at *2.
Applying these rules to the present case, it is clear that
Appellant is entitled to a credit. Appellee did not provide for
the son's food or shelter while the son was at Cumberland Heights
and the halfway house.2 Instead, Appellant paid for both of
these necessities when he paid the Cumberland Heights' and the
halfway house's bills. We acknowledge that Appellee also
provided necessaries for the son, but the rule does not require
that the obligee parent fail or refuse to provide all of the
child's necessaries.
The more difficult issue in this case is the determination
of the amount of the credit. Appellant argued that, because
Appellee spends over $400.00 a month on food and shelter, he
should receive a credit for the full $400.00, that is, his entire
child support obligation for that time period. It is this
court's opinion, however, that it is better to allow a credit for
the actual amount spent up to the amount of the child support
payment. See id. at *3 (remanding the case for the trial court
to determine the amount of support provided by the obligor
parent). If that amount is incalculable, then evidence of
2
There is no evidence that Appellee paid rent or a mortgage payment.
Thus, the term shelter refers to that portion of the utilities attributable to
the son.
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typical expenses would be relevant to the determination of the
credit amount.
While there is some evidence in the record of the son's food
expenses, there is little evidence with regard to the cost of the
son's shelter. Appellee testified that she spent between $80.00
and $100.00 per week on the son's food. There was evidence of
Appellee's utility bills during the period that the son was in
Atlanta, but there is no evidence of Appellee's utility bills
when the son lived in the home. Further, it is impossible to
tell from the evidence how much Appellant actually spent on the
son's food and shelter. Because we are unable to determine the
appropriate amount of the credit from the record before us, we
remand to the trial court for that purpose. TENN . CODE ANN . § 27-
3-128 (1980); see Hartley, 1995 WL 296202, at *3. The parties
shall provide the trial court with evidence of the son's typical
monthly food and shelter expenses while living with Appellee and
while staying at the Atlanta facilities. Thereafter, the trial
court shall determine the amount actually expended by Appellant.
If this is impossible, the court may determine the credit amount
based on evidence of the son's typical monthly food and shelter
expenses while living with Appellee.3
Appellant's second issue involves the language of the MDA.
To explain, Appellant acknowledged that the MDA obligated him to
pay any reasonable college expenses including tuition, books, and
room. He also conceded that the language is not ambiguous and
that this court should interpret it according to its ordinary
meaning. Appellant, however, disagreed with Appellee's
3
During oral argument, Appellee argued that the MDA obligated
Appellant to pay for Cumberland Heights and the halfway house because it
required Appellant to pay for all medical expenses not covered by insurance.
Nevertheless, Appellee did not raise this argument below or develop the record
as to whether the care given at the Atlanta facilities was medical care.
Thus, we do not address this issue. Civil Serv. Merit Bd. v. Burson, 816
S.W.2d 725, 734-35 (Tenn. 1991).
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contention that the phrase “reasonable college expenses” included
the cost of remedial courses and part-time attendance.
Courts should construe the language of an MDA in the light
of its plain, ordinary, and popular meaning. Duvier v. Duvier,
No. 01-A-01-9311-CH-00506, 1995 WL 422465, at *3 (Tenn. App. 19
July 1995)(citing Bob Pearsall Motors, Inc. v. Regal Chrysler-
Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn. 1975)). It is the
opinion of this court that the ordinary and popular meaning of
the phrase does include the courses taken by the parties' son.
The son was enrolled in Georgia State University. The University
assigned him a student number and maintained a transcript of his
progress. Further, although the courses were remedial and not
applicable to curriculum or degree requirements, they were
recognized and factored into the student's grade point average.
Finally, the University required the son to take these courses
before the son could obtain his bachelor's degree. For the above
stated reasons, the costs associated with the son taking these
courses are reasonable college expenses.
Appellant also argued that he was not responsible for the
expenses because the son was not a full-time student. Appellant
claimed that full-time status was a prerequisite to his
contractual obligation. In support of his argument, Appellant
cited an unreported case from the western section, Wright v.
Wright, C. A. No. 146, 1988 WL 99987 (Tenn. App. 30 Sept. 1988).
This case, however, does not support Appellant's proposition. In
Wright, the court held that the evidence preponderated in favor
of the trial court's finding that the daughter had made a
reasonable effort to attain her education. Id. at *2. Although
the appellate court noted that the trial court mentioned the
full-time status of the child, no where did it state that full-
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time attendance was a prerequisite to the father's obligation.
Id. Moreover, there is no evidence in the record before this
court that the son failed to make reasonable efforts at obtaining
his degree. The son's transcript reveals that he has a 2.82
grade point average and that he enrolled in a non-remedial course
in the Spring 1995 quarter. Appellant's second issue is without
merit.
For the foregoing reasons, the decision of the trial court
is reversed as to the denial of a credit and remanded. On
remand, the trial court shall determine the amount of the credit
owed to respondent/appellant, John Thomas Benson, IV, in
accordance with this opinion. The trial court's decision
awarding reasonable college expenses to petitioner/appellee,
Synthia Jo Gaines Benson, is affirmed. Costs on appeal are taxed
one-half to respondent/appellant, John Thomas Benson, IV, and
one-half to petitioner/appellee, Synthia Jo Gaines Benson.
_________________________
SAMUEL L. LEWIS, JUDGE
CONCUR:
_________________________
BEN H. CANTRELL, J.
_________________________
WILLIAM C. KOCH, JR., J.
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