# FILED
December 12, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk ELSIE MARIE R ICHARDSON and ) BRIDGET DENYSE RICHARDSON, ) ) Plaintiffs/App ellants, ) ) Appeal No. ) 01-A-01-9704- CH-00169 VS. ) ) Bedford Chancery ) No. 10,556 JIMMIE LEE RICHARDSON, ) ) Defendant/Appellee. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE
APPEALE D FRO M THE C HANC ERY C OURT O F BEDF ORD C OUNTY AT SHELBYVILLE, TENNESSEE THE HONORABLE TYRUS H. COBB, CHAN CELLOR

DONALD M. BULLOCH, JR. FRANK M. F LY BULLOCK, FLY

& MCFARLI N 301 North Spri ng Street P. O. Box 398 Murfreesboro, TN 37133-0398 Attorneys for Plaintiffs/Appell ants C. KELLY WILSON WILSON & W ILSON 200 East Depot Str

eet Shelbyv ille, Tennessee 37160 Attorney for Defendant/Appellee

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE CONCUR: TODD, P.J., M .S. KOCH, J. 

## O P I N I O N- 2 - This case encompasses three proceedi ngs involving child suppor t in the ChanceryCourt of Bedford Cou nty, and the orders resulting from those proceedings. The first order, issued in 1980, gr anted the wi fe a divorce and gave her custody of the parties’ minor child. The husband was directed to pay $400 per m onth in child support. One-half of that amoun t was to be paid to the mother, and the other half was to be deposited i nto a trust fund for t he benefit of the child.

The second order, issued in 1987, reduced the husband ’s child support obligation to $200 per month, bu t made no mention of the trust . The third order was issued in 1996, after the w ife petitioned the t rial court to compel the husb and to fund the t rust. The cour

t held that its

1987 order had th e effect of terminating the husband’s obli gation to the trust. We affirm the trial cour t.

I.

On August 1 , 1980, the trial court granted Elsie Mar ie Richards on a divorce from Jimmie Lee Richardso n on the ground of cruel and inhuman conduct. The parties’ mi nor child was three ye ars old at thetime. The divorcedecree adopted the parties’ ag reement on child support, v isitation and divisi on of marital prope rty. The clause in the final decree th at deals with child support reads as follows:

1. The defendant is to pay theplaintiff $50.00 per week child suppor

t until such time as he h as paid off the remaining payments due and owing on the plaintiff’s car

. At that time the defendant is to pay the L aw O ffi ces of John Norton $200.00 on t h e 1st and then on the 15 th of each month. From each $200.00 p aym ent $100.00 is to be forwarded to the Plainti ff and the other $100.00 is to be forwarded to the Bedford County Bank as Trustee for the use and benefit of the minor ch ild ofthe parties, BridgetteDenyse Rich ardson. The Trust Agreement un der which the said Trustee will disbur se said funds will be drafted pursuant to agreementbetw een cou nsel of record. The Def endant is also to maintai n health insur ance on said chi ld.- 3 - A trust agreement was drafted in accordan ce with the decree, and w as signed by Mr. Richardso n on Dece mber 29, 1981. On Janu ary 12, 1982, Mr. Richardson made his first pay ment to John Nort on. Mr. Nort on forwarded t he money in accordance w ith the orders of the court until May

15, 1984. Mr. Ric hardson testified that on that date he went to Mr. Norton’s off ice to present his check, and he was told bythe attorney’s secretary that Mr. Norton had been f ired by Mrs. Ri cha rdson. He asked what he was supposed to do, and was allegedly

told “someone w ill tell you later.”

In 1986, the Depart ment of Human Servi ces petitioned the c ourt o n behalf of Mrs. Richardson to hold Mr. Richardson in contempt for failingto pay child support. The court found that M r. Richar dson hadn’t made any payment s since May 15, 1984, and that

he was in ar rears $6,800. Mr. Rich ardson’s only excuse was that Mr
. Norton would no longer acc ept payments. In its order of January 6, 1987, the court found him in contem pt , but suspended puni shment on the condit ion that he immediately pay $1,000 to t he petitioner, and that he begin meeting his obligatio n by paying $300 per month into the court: $200 for hi s regular child suppor

t obligati on and $100 to be applied t o the arrearag e.

On February 25, 1991, and again on Decem ber 31, 1991, Mrs. Ric hardson filed Petitions for Conte mpt against Mr. Richardson. Both petit ion s alleged, among other thi ngs, that M r. Richar dson had failed to fu nd the trust. It appears that both p etitions were dismisse d for failure to pr osecute.

On January 26, 1995, Mrs. Ri chardson petiti oned the court for contempt and for an increasein child s upport. She cl aimed that the defenda nt had fail ed to fund the trus t and failed to maintai n health insur ance on Bridg ette Denyse. The defendant did not dispute that if he had full y funded the trust until his daughter- 4 -

reached her majority in June of 1995, the principal balance would have been $34,800. The record showed that his actu al payments i nto the trust amount ed to $4,225.

Mr. Richards on’s att orney argu ed that his trust obligati on had been terminated in 1987 . The trial court agreed, ruling a s follows:

“After careful consid eration of the ev idence and t he record the Court finds that the fin al decree of divorce was modified bythe Court’s

order entered Ja nuary 9, 1987. The 1987 order effectively

terminated t he deposits int o the trust and reduced the child sup port oblig ation to $200. 00 per month. The Cou rt has no independent recollection of the evidence necessitatinga reduction in the amount of child s upport. The Defendant testified that i t was bec ause of his financial difficultiesalmost forcing him into bankrup tcy. Nevertheless, the Court must speak through its m inut es which the Court interpretsas a discontinuation of further payments i nto t he trust. This appeal followed.

II. The Power of

the Cour

t Over the Trust

Two questions determine the out come of this appeal. First, w hether the trial court had the power to terminatethe appellant’s obligatio n to fund the trust ; seco ndly, if it did have the power, whether the trial court was correct in finding that it had exercised that power in its 1987 order.

In regard to the first question, the appell ant argues th at the terms of the trust instrument impos ed a binding a nd irrevocabl e ob ligation o n Mr. Ric hardson to fund the trust at the rate of $200 pe r month until Brid gette Den yse reache d the age of eighteen. On e clause ofthe agreement, reads: “[t]his agreeme nt and the trust created hereby shal l be irrev ocable, and shal l not be altered, amended, revoked or terminated by

Settlor or any other per son.”- 5 - The trust inst rument also rec ites that it was made “in furtherance of the termsof the F inal J udgmen t in a d ivorce act ion bet ween mysel f and my

former wife, Elsie Marie Ri chardson . . . .” It di rects the tr ustee to “. . . Pay or appl y so much of the net income or

the corpus as the Trustee sha ll in its sole and uncontroll ed discreti on deem proper for the edu cation and extraordinarymaintenance and su pport of the said BridgetteDenyse R ichardson . . . .” Any amount accumulated but not dis bursed before Ms. Richardson reached her majority was t o be paid to her in three inst allm ents , at a ge, 21 , 24, and 2 5 res pect ively.

The appellant conce des that the oblig ation to fund the trust is part of Mr. Richardson’s general chil d support obligation. W e therefore believe that the trust instrument

stands on a differen t foot ing than a contract entered int o by individuals acting on thei r own, w ithout the parti cipation of the tr ial court.

In Penl and v. Penland

, 521 S. W.2d 222 (Tenn. 1975), our Su preme Court examined the nature of a contract drafted pursua nt to a child support order
. The wife soug ht to enforce a cl ause in the contr act that req uired the husband to pay all future educational expenses of the parties’ two daugh ters beyond high school . The husband argued that the clause in question was unenf orceable because he cou ld not be legally

compelled to sup port his daug hters after they reach ed the a ge of m ajor ity. The trial cour

t agreed.

The Supreme Court r

eversed, findi ng thatas the clause in questi on was outside the scope of the leg al duty of support duri ng minority , it retained its contrac tual nature, and could be enfo rced in accordance with its terms. As f or provisi ons consistent w ith the lega l obligati ons of child suppor t, the Court s aid: “When the hus band and wife cont ract wi th respect to t he legal duty of chil d support, upon appr oval of that con tract, the agreementof the parties becomes merged i nto the decree and loses its

contractual nature.- 6 - However, it is clear

that the reason for strippingthe agreementof the parties of it s contractual na tu re is the continuing s tatuto ry p ower of the C ourt t o modify its t erms when chang ed circumstanc es justify. ” 521 S.W.2d at 224.

Sin ce funding the trust for his daugh ter’s benefit was a part of Mr
. Richardson’s child support obl igation, we conclude that t he trial cour t retained the same power to mak

e changes to t hat obligati on as to any ot her provi sion ofits child support order, notwithstanding any language in the trust in strumen t as to the irrevocability

of its t e r m s . We note that Denys e Rich ards on is still enti tled to rec eive the corpus of the trust in accordanc e with the instrument’s original terms, because that portion of the trust ag reement is not par t of the duty of chi ld support, and it retai ns its contractual nat ure.

III. The 1987 O rder

In regard to the question of whether the trial court was correct in finding that it had in fact te rminated the appel lee’s trust obligatio n in 1987, the appel lant offers us a two- pronged argument. First s he points out that there is nothi ng in the procedural history

leading up t o the court ’s 1 987 o rder , and noth ing in t he or der its elf, to indicate that the trust ag reementwas at i ssue. Second, she argues that because the appellee failed to plead the 1987 order as an affirmative def ense to his obligatio ns under the trust agreement, she was deprived of no tice that the appellee would rely on that defense d uring the 1995 proceedings.

As the appellant points out, there is nothing in the recor d to indicatethat Mr. Richardson ever req uested thathis trust fund obligation be terminated, and he has admitted t hat he never fil ed a petition to have his c hild support obligation reduced. He apparently did argue at the 1986 hearing that his worsening finan cial state would make it difficult for h im to comply with the court’s previouschild suppor t order. The 1987 order does not specifically mention the trust, and does not even state that it- 7 -

constitutesa reduction i n c hild sup port, but merel y orders Mr. Ric hardson to henc efo rth pay $300 monthly , with $200 to be applied to h is regul ar child su p por t obligation and $100 to the arrearage.

The appellant argues that the lack of any re ference t o the trust fund provesthat the trial court did not intend to termi nate th e obli gati on. But the sa me facts can be interpr

eted both way

s. The 1987 order was the la st order of the court on child support, and was clearly meant to sup ersede its ear lier order . The appellee notes that if the tri al judge i ntended for the trust obli gation to cont inue, he coul d have specifically

said so in t he order, but he did not.

It seems most lik

ely that thecourt and the at torneys s imply overlooked the trust fund in 1987, especially in light of the fact thatthe $6,800 arrear age that the court’s order

attempted to cure was only about half of the amount that Mr . Richardso n was oblig ated to pa y betwe en 19 84 an d 198 7. Bu t suc h an o versig ht di d not relie ve the court of the obli gation to r ule on the leg al effect of its 1987 ord er after the part ies returned to cour

t.

Even though the judge has no independent memory of the proceedin gs, we still believe that the trial court is the best interpreter of its own orders. Th is court is even further removed from the events surrounding the 1987 order t han is the tri al c ourt, and we would be reluct ant to say t hat the judge’ s order means s ometh in g different f rom what he says it means.

The appellant point s out thatthe appellee di d not plead the ter mination of the trust as an affirmative defense, and did not raise that argument in any form in any of his pleadings. The transcript indica tes that the ap pellant seized upon this argumentafter she r ealized that the aff irmative defense that she did plead, laches,- 8 -

would not apply i f th e trust oblig ation were considered to be in the natu re of child support.

The Rules of Civil Procedure require a party to “se t forth affirmatively facts in short an d plain ter ms re lied upon to co nsti tute [avoi dan ces a nd af firm ative defenses].” Rule 8.03 , Tenn .R.Civ .P. A party may be deemed to hav e waived any defense (with some exceptio ns not relevant here) that h e does not present by pleading s or motions. R ule 12.08, Tenn.R.C iv.P. Thus the trial court could have refused to hear Mr. Richardson’ s argument that his failure t o fund the trust was excused by that same court’s pri or order. But we do not believe t hat it was

obligated to do so.

The appellant argues t hat t he la ck of prior noti ce of the a ff irma tive defense prevented her

from making prepar

ations to meet it, such as by searc hing for a transcrip t of the 1986 pr oceedings to unearth ev idence that the court intended at that time for the trust obligati on to continue. H owever we note that the Rules of Civil Procedure permitted her to file a Motio n to Alter or Amend the Judg ment, or a Motion forNew Tri al, which w ould have g iven her t ime and opportunit y to develop new evidence or counter- argum ents to pr esent to the tri al court. SeeRule 59, Tenn.R.Civ. P. The record does not indicate that the appellant took advantage of that opportunity , nor

was any thing said at oral arg ument to lead this cou rt to believe that such evidence was likely to emerge. We the refore hold that the tr ial court di d not err in ruling that Mr. R ichardson’s obligatio ns under the tr ust fund ended in 1987.

IV. Medical I nsurance

The divorce decree includ ed an order for M r. Richar dson to prov ide medical insurance for h is daughter . In her 1995 peti tion, Mrs. Richardson asked the court for a judgment for the money she hers elf paid to insure her daughter ($2,319)- 9 -

and for medical and surgical expenses that were n ot covered by insurance ($1,545). Mr. Richardson testified that he di d in fact maintain insurance on Denyse for t he years 1980 to 1995, exce pt for two or three years dur ing whi ch he did not have insurance himself.

Mrs. Richardson apparently asked Mr. R ichardson about medi cal insurance onl y once, in a 1987 letter w hich reads i n pertinent par t: “By ord er o f the c ourt, you ar e to maintain heal th insurance for your daughter to cover costs of doctor’s fe es, medical fees and hosp ital izati on; e tc. In the p ast yo u have shown nothing but your unwillingness to comply by the court order, so I feel sa fe in assuming t hat you have never bothered to acquire any insurance coverag e foryour chi ld. .

. . If you do not have adeq uate insurance coverag e for her at this time, pl ease obtain the coverage for her now!”

Mr. R ichardson deni ed ever re ceiving the letter, an d Mrs. Ri chardson neve r fol lowed it up with f urth er inq uiry.

It obviously

would have been helpful for Mr . Richardso n to volunt arily noti fy his ex- wife that

he had complied w ith the court’s or der on medical i nsurance for his daughter, and to give her the name ofthe in surance compan y, a c laim for m, and an insurance ca rd. We can go even further, and s ay that it would have been the right thing to do. But

a moral oblig ation is not t he same as a legal obligation, and we are unaware of any law

that would require him to do so, if he does not receive a request forthese items from her . We must count the resulti ng financial loss to Mrs. Richardson as among the many unfortunate conseq uences flowi ng from the lack of communication between the parties.

IV. A ttorney Fees

The appellant arg ues that the trial cour t erred in dec lining to grant her attorney fees for pursuing t his action. A plaintiff spouse may recover from the other- 10 -

spouse reasonable attor ney fees incur red in enforcingany decreefor child suppor t. Tenn. Code Ann. § 36-5- 103(c). However theaward of attorney fees i s in the sound discretion of the trial court. Sherrod v. Wix, 849 S.W.2d 780, 785 (Tenn. App. 1992).

There is no exhau stive li st of the facto rs a trial court should take into accountin exerc ising it s discretion on the questi on of attorney fees. Such an award would seem to be most appr opriate, however, w here the p lain tiff proves that she is entitled to an award for the benef it of her minor child , and wh ere the cost of vindicati ng tha t right pro duces an an ineq uitable reduct ion in the actua l amount the child receives . In thi s ca se the petitione r did not prov e that she was entitled to the relief sh e sought, so we can see no abuse of discretion i n the trial court’ s determination that

she is not enti tled to attorney fees.

V.

The judgment of the tr ial court i s affirmed. Reman d this caus e to the Chan ceryCourt of Bedford Cou nty for further proceedings

consistent w ith this opi ni on . Tax the costs

on appeal to the appe llant.

________________________________ BEN H. CAN TRELL, JUDGE

CONCUR:- 11 -

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ WILLIAM C. KOCH, JR., J UDGE