# FILED

December 4, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

ELIZABETH ANN BOUTIN, ) ) Plaintiff/Appellee, ) ) Williamson Chancery ) No. 18606-R2 VS. ) ) Appeal N o. ) 01A01-9601- CH-00014 FRANCIS JOHN BOUTIN, ) ) Defenda nt/Appella

nt. )

APPEAL FROM THE CHANCERY COURT FOR WILLIAMSON COUNTY

AT FRANKLIN, TENNESSEE THE HONORABLE HENRY DENMARK BELL, JUDGE

For the Plaintiff/Appellee : Fo r the Def endant/A ppellant : Virginia Lee Story Ewing Sellers Franklin, Tennessee SMITH & SELL ERS Murfreesboro, Tennessee



## AFFIRMED AS MODIFIED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE1 T he parties had a third child who had already rea ched the age of majority by the tim e the marital dissolution agreement was negotiated and signed.

2 Tenn. Code Ann. § 34-11-102(b) (1996) (formerly codified at Tenn. Code Ann. § 34-1-

(continued...) -2- 

## O P I N I O N

This ap pe al involves a provision i n a marita l dissolution a

greement requiringthe fathe

r to prepa y his child sup port. U

pon discover

ing thatone of his children had decided not

to complete

high school, the fathe

r stopped pa

ying the agreed amount of c hild support a nd filed a petition to terminate his child support obligation

on the ground that the prepayment agreement was pre mised on the children’s continued e nrollm ent in h igh school. The Cha ncery Cour

t for Williams on County denied the petition, and the father perfected this appeal. We have determined that the trial court correctly enforced the amended marital dissolution agreement

and accor

dingly aff irm the jud gment as modified her ein.

I.

Elizabeth Ann Boutin

and Franc is John Boutin were divorced in November 1988 in the Chan cery Cour t for Williams on County. T

he decree incorporated an August 1988 marital dissoluti on agreem ent in which th e parties a

greed tha t Ms. Boutinwould rec eive custod y of two of

their sons, 1 Brian Bou tin, then f ourteen, and Stephen Boutin, then twelve, and that Mr. Boutin would pay $2,000 per month in child suppor

t. The agreement specifi cally provi ded for the renegotia tion of Mr. Bouti n’s child support obligat ion when Bri an Boutin became eigh teen.

Brian Bout in turned eighteen i n May 1992 shor tly before completinghis junior year in high school. In June 1992 Ms. Boutin peti tioned for an increa se in childsupport, a

nd the parties ne gotiated a n amendme nt to their

marital dissolution agreement. In return for Ms. Boutin’s agreement not to seek any fu ture chil d support increase s, Mr. Boutin agre ed to incre ase his mont hly child supp ort to $2,250 until Bria

n Boutin ’ s expecte d graduatio n from high school in Ma y 1993 and then to red

uce it to $1,128 until Steph en Boutin’s expected graduation

from high school in Ma

y 1995. 2 Mr. Boutin also agreed to prepay his entire anticipated2 (...continued)

101(b)) provides :

Parents shall con

tinue to be

responsi ble for th e support of each child for whomthey are

responsi ble after the child reaches eighteen ( 18) years of age if the child is in hi gh school. The duty o f support shall con

tinue until

the child graduates from high school or the class of which the child is a member

when the child atta ins eighteen (18) y ears of age gra duates, w hicheve r occur s first.

3 The Missouri c ourt has s tayed the URISA proceeding pending the outcome of this case.

4 The contempt matter related to Ms . Boutin’s u nauthori zed use o f a joint line of cr edit at a Nashvi lle furni

ture stor e. Mr. Bou

tin appea led from t he decis ion not to ho ld Ms. Boutin in contempt, but his lawyer announced during oral argument that he wa s abandoning this issue. -3- childsupport oblig ation for b oth childre n - $57,950 - on or before Ju ly 15, 1993. In addition, the parties agreed th at Mr. B outin’s tota l obligation w ould be reduced by $25,000 wh en he conveyed his inte rest in the marital home to Ms. Boutin. T

he trial cour t entered an agree d order in J

une 1992 dire cting Mr. Bout in to pay Ms. Boutin the r

emaining $3 2,950 by July 15, 1993.

Ms. Boutin and he

r two sons moved to Flor

ida during t

he summer

of 1992. Stephen enrolled in high school, but Brian did not when he learned that he would be required to attend an extra year of high school in

order to graduate. Instead of enrolling in highschool, Brian decided to pursue his G.E.D. Mr. Boutin stopped pa ying child suppor

t in Januar

y 1993 when h e discover ed that Br

ian h ad no t enrolled in high school. By that time, he had transferredhis interest in the marital home to Ms. Boutin and ha d paid $20,2 50 of his re maining $32, 950 obligation

.
Mr. Boutin moved to St. Louis after the divorce. In June 1993, Ms. Bouti n commenced an URIS A action a gainst Mr. Boutin in Mi ssouri to re quire him t o pay his child support arrearage. 3 In response, Mr. Bo utin fi led a petit ion in the Chancery Court for

Williams on County see

king to hold Ms. Boutin in co ntempt 4 and requestin g a termin ation of his child suppor t o bligatio n because he had overpaid his obligati on followi ng Brian’ s decis ion not to comple te high schoo l. On August 2 1, 19 95, the trial court filed an order finding that Mr. Boutin owed Ms. Boutin

$12,700 in

back child support
. Accordingly, the trial court awarded Ms. Boutin a judgmen t fo r $15,933. 33 repres enting the c hild support a rreara ge and pre-j udgment inte

rest and $2 ,050 in attorney’s f ees.-4- II.

Mr. Bou tin’s principal assertion on this appeal is that the trial court erred by interpreting the amended marital dissolution agreement to require

him to pay the full, lum

p sum amount of c hild support obligation even though o ne of his son s h ad dropped out of high school. He asserts that he agreed to pay the increased childsupport on the

assumption t

hat his twominor sons w ould complete high school on schedule. Since the amended agreement does not spe cifically address the possibilitythat the boys migh t drop out of

high school, we must determine whether the amount of Mr. Boutin’s child support obligation depended as a matter of law on bo th his so ns remaini ng in hig h school

.
Marital dissolution agreement s are ess entiallycontract ual in the sense that they a re the produ ct of the par ties’ nego tiation and agreemen t. See Seeber v. Seeber, App. No . 03A01-9 5 08-CV-0 0290, 1996 W L 165092, a

t *5 (Tenn . Ct. Ap p. Apr. 10, 1996); Mitchell v. Mitc hell, App. No . 01A01-9 206-CV-0 0244, 1993 WL 33765, at *4

(Tenn. Ct. App. Feb. 10, 1993). Except for legal obligations that
rem a in under the c ourt’s con trol, see Towner v. Towner, 858 S.W. 2d 888, 890 (Tenn. 1993), these agreements should be construed and enforce d using the customary principles of contra ct law. Br uce v. Bruce, 801 S.W. 2d 102, 105 (Tenn. Ct. App. 1990) ( quoting Matthews v. Matt hews, 24 Tenn. App. 580, 593, 148 S.W.2d 3, 11-12 (1940)).

A parent’s obligati on t o support minor children is one of the legal obligations remainin g within the court’s c ontrol as lo ng as the chil d is entitle d to receive su pport. Parents must support their non-disabled children until they become eighteen o r

until their

high school

class grad uates. See Tenn. C ode Ann. § 34-11-10 2 (b). The Child Support Guidelines promulgated by the Tennessee Departm ent of Human

Service s govern a p arent’s m inimum suppor

t obligati on. A ny voluntaril y assumed ob ligation in e xcess of th e require d min imum i s governed exclusively by the par ties’ agr eement. Mr. Bout

in’s chil d su pport obligation

followingthe entry o f th e amende d marital dissolution agreement

in June 1992 appe ars to exceed the guidelines in three material respects . First, the guidelines would not require him to defray the costs of his sons’ colleg e5 Mr. Boutin’s adjusted gross income in 1992 was $73,883. Acc ordingly, the child

suppo rt guidelines required him to pay approximately $1,383 in monthly child suppor t. Hi s agreement

to pay $2,250 until May 1993 when Brian was expected to graduate fr om high school was 62% higher than the support required by the guidelines. The amount Mr . Boutin ag

reed to pay for St ephen’ssupport a

fter May 1993 likewise exceeds the gu idelines a mount. -5- education. Second, the guidelines would not requir

e him to pay

as much mo nthly childsupport as h e agreed to pay. 5 Th ird, the gui delines w ould not requ ire him to agree to prepay the entire amou nt of his e xpected ch ild supp ort obli gation.

The amended m arital di ssolution agr eement c ontains suppor

t obligations that remaine d in the tri al court’ s control a nd other obli gations cont rolled by th e parties’ agreement. Mr. Boutin’s prepayment obligation exceeds the legal minimum required by the guidel ines and is, th eref ore, gove rned by the terms of the marital dissolu tion agree ment.

We must ascertain and give e ffectto the contracting parties’ mutual intention as reflected in their ag reement. Bob Pear sall Motors, Inc. v. Regal Chrysler- Plymout

h, Inc., 521 S.W. 2d 578, 580 (T enn. 1975) . To ac complish thi s task, we must consider

the entire contract

without fa voring ei ther party

. Omaha Property and Cas. In s. Co. v. Johnson, 866 S .W.2d 53 9, 541 (Tenn. C t. App. 1993). We must a

lso be guided

by the wri tten term s of

the contra

ct, Heyer- Jordan & Assocs v . Jordan, 801 S.W.2 d 814, 821 (T enn. Ct. App. 1990) , rather than by the contracti ng parties ’ states of m ind or un communica ted inten tions. Petty v. Sloan, 197 Tenn. 630, 642, 2 77 S.W. 2d 355, 360- 61 ( 19 55); Bill Walk er & Assocs. v. Parr

ish, 770 S.W.2d 764, 770 (Tenn. Ct. App. 1989).

The fact that the parties calculated Mr. Boutin’s anticipat ed futur e child support obligation based on Tenn. Code Ann. § 34-11-102(b) does not necess arily
mean that the parties agreed that Mr. Boutin’s obligation would decrease if either
son left high school before graduating . The r ecord cont ains no indic ation that the parties ever disc ussed, le t alone agr eed, how their amended marit al diss olution agreementmight be affected if o ne or both of their sons deci ded to drop ou t of high school. Without this evidence, we cannot condition Mr. Boutin’s contractual agreementto prepay a

n agreed u

pon amount of ali mony on both of his sons remainingin high school . Were we to do so, we c ould be giving effect to Mr.-6-

Boutin’s uncommunicated intentions. Accordingly, we affirm the trial co urt’s conclusion

that Mr. Boutinis not excus ed from hi s child support obligations under the a mended ma

rital disso lution agre ement sim ply because

Brian el ected not t

o complete high school.

III.

Mr. Boutin also insists that the trial courterred by not requir ing Ms. Boutin to reimburs e him for a payment he was r equired to make to a f

urnitu re stor e because of unauthor

ized, post -divorce

charges M s. Boutin m ade on a charge account wit h the sto re. We agree that this was not a marital debt and, therefore, that it was not Mr. Boutin’s obligation. Accordingly, we have determined that Mr. Boutin should receive

credit f or this paym

ent.

The parties a

greed in their ori ginal mar

ital dissolu tion agreement that they would not incur a

ny debts af

ter the div orce that

could be ch argeable

to the other party. Despite this agreement, Ms. Boutin purc hased appr oximately $ 7,500 worth of furniture at a

Nashville store using a joint charge account that was still in Mr. Boutin’s name. D erogator y informa tion was pl aced in Mr . Boutin’ s credit f ile after Ms. Bouti n failed tokeep the a ccount cur

rent, an d t his information caused
amortg age co mpany to dec line to ref inance Mr . Boutin’ s mortgage until the dispute was resolved. Eventhough he had not purchas ed the fur

niture, M r. Boutin was required to pay the furniture company $500 to resolve the problem.

The trial cour

t declined

to hold Ms. Boutin in con tempt for using this account to purchase furniture and declin ed to give Mr. Boutin credit f or the $500 payment to Ms. Bout

in’s cred itor. T he debt invol ved was a

non-mari tal debt in curred by Ms. Bout in after the divorce fo r her own ben efit. Accordin gly, Mr

. Boutinwas not responsible for this debt, and the trial court should have given Mr. Boutina $500 cre dit on his chi ld support arrear age to compensat e him for the $500 payment he made on Ms. Boutin’s behalf.

IV.-7- Finally, Mr. Bou tin ass erts the t rial cour t should have

awarde d him $3,997.82 to reimbur se him

for the le gal expense s incurre d to defend ag ainst Ms. Boutin’s demand

that he honor

his child supp ort agreement. H e argues t hat he is entitled to these f

ees beca use Ms. B outin breac hed the ma rital diss o lution agreementby making unauthorized charges on a joint ac count th at should hav e been closed af

ter the div orce. T

his argume ntconfuses two issues that should be kept separate.

The first issue involves the parties’ child support dispute. Post-divorce proceedin gs to collec t past-due child suppor

t are pri marily fo r the bene fit of the childor children in need of s upport not the custodial p arent. Graham v. Grah am, 140 Tenn. 32 8, 334-35, 204 S.W. 987, 989 (1918). Accordi ngly, Te nn. Code A nn. § 36-5-103(c ) (1996) pr

ovides that a parent u sing the cour ts t o enforce a child support obligation m ay recove r reasona ble attorn ey’s fee s f

rom th e delinquen

t spouse. These fees are wit hin the co urt’s dis cretion. Sherrod v. Wix , 849 S.W.2 d 780, 785 (Tenn. Ct. App. 1992). Mr. Boutin is not entitled to attorney’s fees with regard to the child support issue; however the record contains a mple basis for the trial cour t’s decisi on to order

Mr. Bout in to pay Ms. Boutin $2,050 for the legal expenses sh e incurre d.

The second issue

involves Mr . Boutin’ s effort s to recove r the $500 he

paid
on Ms. Boutin’s behalf. His claim for attorney’s fees can only be based on the provision in the mar

ital dissolu tion agreement authorizing either party to recover the legal expenses incurred as a result of the other party’s breach . We hav e careful ly reviewe d the billing informat ion sub mitted by Mr. Boutin’s lawyer. Whilewe have no doubt that t he time an d charges reflected therein a re reas onable and appropriate, we areunable to determine what portion of the lawyer’s time was spent defending M s. Boutin’s claim for child support arrearages and what p ortion
was spent pursui ng Mr. Bo utin’s cla imfor the $50 0 he paid on Ms . Boutin’ s postdivorce furniture debt. Without this information, and in light of the factthatthe primary contested issue between the parties concerned Mr. Boutin’s child support obligation, we find t

hat the tri al court pr

operly declined to require Ms. Bouti n to reimburse M r. Boutin fo r any porti on of his legal expe nses.-8- V.

We affirm

the trial court’s c onclusion tha t Mr. Bou tin remai ns liable f or the
en tire amount of t

he child supp ort he agr

eed to pay i n the amen ded m arita l dissolution

agreement. On remand, however, we direct the trial court to give Mr. Boutina $500 cre dit on the or igin al judgme nt in recog nition of the payment he was requ ired to ma

ke to oneof Ms. Boutin’s creditors. We also tax the costs of this appeal to F

rancis John

Bo utin and his su

rety for which exe cution, if necessary, may issue.

_________________ __ _________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

_______________ SAMUEL L. LEWIS, JUDGE

_________________

_______________ BEN H. CANTRELL, JUDGE