# FILED
December 30, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ JANET LYNN POSNER, Plaintiff-Appellee, Shelby Circuit No. 148133 Vs. C.A. No. 02A01-9710-CV-00249 ALAN MARTIN POSNER, Defendant-App

ellant.

__________________________________________________ __________________________ FROM THE SHELBY COUN TY CIRCUIT COURT THE HONORABLE JAMES E. RUSSELL, JUDGE

William P. Zdancew

ica; Dowden & Zda

ncewica of Memp

hiis For Appellee Robin H. Rasmussen; Jackson, Shields, Yeiser &

Cantrell of Cordova For Appellant

REVERSED IN PART, AFFIRMED IN PART AND REMANDED Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.
CONCUR: ALAN E. HIGHERS, JUDGE DAVID R. FARMER,

JUDGE

This appeal concerns the

modification of a marital dissolution agreement incorporated in a final decree

of divorce. Plaint

iff, Janet Lynn Pos

ner (Wife), an

d defendant, Ala

n Martin Posner (Husband), were divorced by final decree entere

d July 13, 1995. The decree approved2

andincorporated by

reference a m

arital dissolu

tion agree ment (MDA) which, among other things, provided for thejoint custody of the minor children with Wife designated as the primary
caregiver. The agre

ement specifica

lly provid ed that Husband would pay child support as establishedunder the child support guide lines pursua nt to T.C.A. § 36-5-101 (e). The instant case was spawne

d by the following pr

ovision of the marit

al dissolution agre

ement: On or before May 1st of

each year (duringyears that child support is paid), the part ies will re-evaluate the amount of Guideline Child Support paid by the Husband by comparing theHusband’s p receding year’s annual in come. To the exte

nt that Husb and’ s income increases or decreases, the Husband’s monthly su pport obligations will be modified without leave of court in an amount equal t o t he Child Support Guid elines then in eff

ect (this contemplates that the Husband’s obligations may be increased or decreased). On August 8, 1996, Wife filed a “Petition for

Scire Facias and Contempt.” The petition alleges that pursuant to Paragraph 2 of the marital dissolution agreement (quoted above) Wife
was provided with a letter from Husband’s accountant “setting forth his annual salary as well as
a copy of a form W-2(c) statement of corrected income and tax amount,” and that Wife’s request for copies of his full income tax records was refused. The petition prays that Husband be he

ld in contempt for refusing to f urnish the tax returns and that he be required to provide the tax returns. After a hearing, the trial court denied Wife’s requested relief in an orde r providing: 1. The Marital Dissolution Agree ment does not speci fically require respondent to produce copies of his income tax return, W2's, 1099's, or other tax information. 2. Respondent is not i

n contempt of the Co

urt’s orders. On December 17, 1996, Wife filed a “Petition to Modify Final Decree” citing

virtually the same allegations but asking the court to mod ify the f inal decree of divorce and marital dissolution agreement to require Husband to pro vid e Wife “with his full federal and state tax returns, includin g all sche dules and forms, prior to May 1 of each year in order to set Defendant’s child support obligations.” After a hearing, the trial court entered an “Order Modify ing Final Decree of Divorce” which provides:

ORDERED, ADJUDGED AND DECREED: 1. That the Petition to M

odify Final Decre

e of Divorce is

hereby granted, and Defendant,

Alan Posner, is

to furnish Plaintiff, Janet Posner, with h is tax returns and any o ther relevant do

cuments3 according to the terms of

the Agreement nece

ssary to ascerta

in his fullannual income in order to effectuate the term s of the Agreement. 2. That Petitioner i

s denied her req

uest for attorne

y fees. 3. That Defendant is required to pay all court costs incurred for bringing this cause for which let execution issue if necessary. Husbandhas appealed and presents three issues for review which, as set out in his brief,
are: A. Whether the Circuit C ourt erred when it Modified the Final

Decree of Divorce and thus the MaritalDissolution Agreement to provide that Husba

nd furnish Wife w

ith his tax returns. B. Whether the Circuit Court erred in its re-interpretation of the Marital Dissolution

Agreement? C. Whether the Circ

uit Court erred in refusing to award Husband his attorney fees and expenses for d efense of the Marital Dissolution Agree

ment? Husband’s second issue for review is really a nonissue because

the trial court made no ruling interpreti

ng the agreemen

t. In considering the first issue for review, we must first determine whether the final decree is subject to the modif

icatio n made b y the trial court. W ithout question, the

order for child support remains in the court’s control and is subject to modification. T.C.A. § 36-5-10 1 (a)(1)(1966). WhenHusband and Wife contract with respect to the legal duty of

child support, upon approval of

the contract,

the agreement of the parties becomes merged into the decree and loses its contractual nature. Penland v. Penland , 521 S.W.2d 222 (Tenn. 1975). In Penland , the Court said: [I]t

is clear that the reason for stripping t he agreeme

nt of the parties of its contractual nature is the continuing statutory power of the Court to modify its terms when changed circumstances justify. It follows, and we so hold, that only th

at porti on of a property settlement agreement

betweenhusband and wife dealing withthe legal d

uty of child support, or alimony over which the co ur thas continuing stat utory power to modi

fy, loses its contractual nature when merged into a decree for divorce. Penland , 521 S.W.2d at 224. In the instant case, the parties’ agreement to annually review Husband’s income

in order to keep the child support payme nts in compliance with the guidelines is admirable, but we know of no authority that requires such action by the parties. Therefore, we hold that the above-quoted4

provision of the MDA is not mer ged into the final d

ecree in this ca

se. Accordingly,

the tr i al court ’ s modification of the final decree is a nullity. Husband’s issue also includes the trial court’s authority to modify t he MDA. While tec

hnically the trial court’s order deals stric tly with the fin al decree of div

orce, in the inter

est of judicial ec

onomy, we will consi

der the is su e concerning modification of the MDA. Under the guise of interpretatio

n, the court is

without power to make a different contract than that executed by the parties. Central Drug Store v. Adams , 184 Tenn. 541, 201 S.W.2d 682 (1947); Dubois v. Gentry, 182 Tenn. 103, 184 S.W.2d 369 (1945). The MDA provision requires an annua l compar ison of child suppor t payments with Husband’s preceding years’ annual income. Obviously, since the parties specifically provide for payment of child suppo rt pursuant to the guidelines, the use of the term “income” must mean income as defined in the guidelines for the purposes of calculating child support awards. Section 1240-2-4-.03(e

) exhaustively de

scribes gross

income for

calculation purp

oses, and it certa

inly includes more than a

spouse’s salary. Since the MDA clearly provides for yearly re-evaluation of the guidelines amo

unt of support base

d on the Husband’s

previo us year’s income, it was apparently

contemplated by th

e parties that something be used in order to make this comparison. A n unexpressed obligation will be implied when it is clear that it was intended. Hamble n County v. City of Morristown , 656 S.W.2d 331 (Tenn. 1 983). Under the te rms of the agree

ment, Husband is required to furnish acceptable data for making the comparison. Every contract imposes upon each party a duty of good faith and f air dealing in

its performance

and enforceme

nt, and there is

an implied undertaking on the part of each party that nothing will be intentionally done which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. Winfree v. Educators Credit Union , 900 S.W.2d 285 (Tenn. App. 1995). Thus, u nder the terms of

the MDA, Husband mu

st furnish acceptable

data disclosing his income

as defined in the c

hild support guideli

nes. This does not necessarily

mean that he must fu

rnish copies of his

income tax retur

ns and all schedule

s thereto
so long as he does fur

nish the accepta

ble data. Misr

e presentation on the part of Husband can certainly be ascertained by the liberal discovery rules in existence. It appears to this

Court that the MDA implicitly requires the furnishing of competent data in order to make the comparison called for by the MDA. A modification requiring furnishing5

of complete income tax returns is an unwarranted modification of the MDA. Hu sban d’s last issue concerns the failure of the court to award him attorney fees. The trial court denied Wife’s request for attorney fees, and we cannot f ind in the record where Husbandrequested attorney fees. In any event, it appears to this court that the entire litigation could have easily been avoided with a little effort on the part of both parties to comply with the MDA. Each party s

hould bear their o

wn expenses. For the reasons set ou

t above, the orde

r of the trial cour

t mo difyi ng the final decree of divorce is reversed and

is otherwise

affirmed. This case is remanded to the trial court for such further proceedings as ma

y be necessary.

Costs of the appea

l are assessed e

qually to the partie

s.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE