FILED

May 31, 1996

Cecil W. Crowson

Appellate Court Clerk

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. )

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
2

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
3

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
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.

4

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
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.

5

*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
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).

6

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
7

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 ChryslerPlymouth, 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-
8

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.