Wilson v. Wilson

IN THE COURT OF APPEALS OF TENNESSEE
TAMMY BORING WILSON, )
FILED
C/A NO. 03A01-9610-CH-00322
)
Plaintiff-Appellee, ) June 30, 1997
)
) Cecil Crowson, Jr.
) Appellate C ourt Clerk
) APPEAL AS OF RIGHT FROM THE
v. ) BLOUNT COUNTY CIRCUIT COURT
)
)
)
)
TERRY LEE WILSON, )
) HONORABLE W. DALE YOUNG,
Defendant-Appellant. ) JUDGE
For Appellant For Appellee
MARTHA MEARES R. D. HASH
Maryville, Tennessee Maryville, Tennessee
JOYCE, MEREDITH, FLITCROFT
& NORMAND
Oak Ridge, Tennessee
OPINION
AFFIRMED, AS MODIFIED
REMANDED Susano, J.
1
This is a post-divorce dispute. The trial court
awarded Tammy Boring McLeod, whose last name was formerly Wilson,
a judgment for $3,386.15 against her former husband, Terry Lee
Wilson, “for the sole and exclusive use and benefit of Misty Dawn
Wilson as reimbursement for college expenses.” The trial court
found this amount to be the college expenses incurred by the
parties’ now-adult daughter, Misty,1 for three semesters of
college. The Court ruled that Ms. McLeod was entitled to a
judgment for this amount pursuant to the following provision of
the parties’ marital dissolution agreement:
That the Husband shall pay the expenses of a
college education for the parties’ minor
children if they desire to further their
education by way of college.
Mr. Wilson appealed, raising six issues. In effect, this appeal
questions the correctness of the award in toto, as well as the
propriety of including certain types of expenses as “expenses of
a college education.” The question for our determination is
whether the evidence preponderates against the trial court’s
judgment. See Rule 13(d), T.R.A.P.
Mr. Wilson argues that he is only liable for Misty’s
college expenses to the extent they exceed funds available to her
from her savings account. This account was set up at Misty’s
birth with a small deposit by her grandfather. The parties
disagree as to how the remaining funds in that account were
1
For ease of reference, the parties’ daughter will be referred to in
this opinion by her first name.
2
thereafter accumulated. Mr. Wilson testified that the savings
account was intended to provide at least some of the funds for
Misty’s college education. Ms. McLeod and Misty dispute this.
The trial court correctly held that the savings account
was not material to the issue before us. Mr. Wilson’s obligation
to pay his daughter’s college expenses, as set forth in the
marital dissolution agreement, is not tied, in any way, to the
savings account. We must focus, as the trial court did, on the
parties’ intent, as expressed in their marital dissolution
agreement. See Bob Pearsall Motors, Inc. v. Regal Chrysler-
Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn. 1975). There is
nothing in the parties’ agreement to suggest that Mr. Wilson’s
obligation was contingent upon the exhaustion of the funds in the
savings account. This issue is without merit.
Mr. Wilson did not dispute the fact that tuition, books
and school supplies were included within the words “expenses of a
college education.” It is clear that the relevant provision in
the marital dissolution agreement contemplates these types of
expenses. The trial court so found, and Mr. Wilson did not
question this finding in his testimony; nor does he argue against
such a finding on this appeal. What he does contest is the trial
court’s finding that his obligation applies to school lunches
totaling $650 and gas for Misty’s car in the amount of $572.00.
3
Mr. Wilson contends that his contractual obligation2 is
subject to an implied condition of reasonableness, citing Moore
v. Moore, 603 S.W.2d 736, 739 (Tenn.App. 1980). We agree;
however, as it pertains to Misty’s lunch expense and gas needs,
we do not find it necessary to decide whether these categories of
expenses are reasonable college expenses in this case. This is
because we find that the evidence preponderates against the trial
court’s finding that Mr. Wilson failed to satisfy his obligation
with respect to these expenses, even assuming they are reasonable
college expenses under the marital dissolution agreement.
The record is clear that Misty attended a college--the
Blount County campus of Pellissippi State--that is approximately
five miles from where she lived with her father, Mr. Wilson. Her
classes were over at 1:00 p.m. Food was available to her at
home. There were occasions when she availed herself of the
opportunity to eat lunch at home. Given the fact that lunch was
readily available to her at home, a short distance from
Pellissippi State, we find that the evidence preponderates
against a finding that Mr. Wilson has not satisfied any
obligation he had with respect to her lunch needs.
The trial court calculated Misty’s gas expenses based
on an allowance of 22 cents per mile; but this ignores the fact
that such an allowance includes elements other than gas, e.g.,
depreciation, maintenance, and the like. It is clear in this
2
Mr. Wilson acknowledges that his obligation is contractual in nature,
citing Penland v. Penland, 521 S.W.2d 222, 224-25 (Tenn. 1975).
4
case that Mr. Wilson furnished Misty a car for the short drive to
and from school. We do not believe it appropriate in this case
to burden him with a per-mile charge. Assuming transportation
was a reasonable college expense in this case, we find that the
evidence preponderates against the trial court’s finding that Mr.
Wilson has not satisfied this obligation. We find that he
furnished Misty’s transportation. There is insufficient evidence
in this case to warrant a finding that Mr. Wilson owes an
additional transportation expense of $572.
The judgment of the trial court is modified by reducing
the amount of the award from $3,386.15 to $2,164.15. Exercising
our discretion, we tax the costs to the appellant. This case is
remanded to the trial court for enforcement of the judgment and
collection of costs assessed below, all pursuant to applicable
law.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
______________________
Herschel P. Franks, J.
______________________
Don T. McMurray, J.
5