FILED

December 4, 1996

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

ELIZABETH ANN BOUTIN, )

)

Plaintiff/Appellee, )

) Williamson Chancery

) No. 18606-R2

VS. )

) Appeal No.

) 01A01-9601-CH-00014

FRANCIS JOHN BOUTIN, )

)

Defendant/Appellant. )

APPEAL FROM THE CHANCERY COURT FOR WILLIAMSON COUNTY

AT FRANKLIN, TENNESSEE

THE HONORABLE HENRY DENMARK BELL, JUDGE

For the Plaintiff/Appellee: For the Defendant/Appellant:

Virginia Lee Story Ewing Sellers

Franklin, Tennessee SMITH & SELLERS

Murfreesboro, Tennessee

AFFIRMED AS MODIFIED

AND REMANDED

WILLIAM C. KOCH, JR., JUDGE
1The parties had a third child who had already reached the age of majority by the time

the marital dissolution agreement was negotiated and signed.

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

(continued...)

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O P I N I O N

This appeal involves a provision in a marital dissolution agreement

requiring the father to prepay his child support. Upon discovering that one of his

children had decided not to complete high school, the father stopped paying the

agreed amount of child support and filed a petition to terminate his child support

obligation on the ground that the prepayment agreement was premised on the

children’s continued enrollment in high school. The Chancery Court for

Williamson 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 accordingly affirm the judgment as modified herein.

I.

Elizabeth Ann Boutin and Francis John Boutin were divorced in November

1988 in the Chancery Court for Williamson County. The decree incorporated an

August 1988 marital dissolution agreement in which the parties agreed that Ms.

Boutin would receive custody of two of their sons,1 Brian Boutin, then fourteen,

and Stephen Boutin, then twelve, and that Mr. Boutin would pay $2,000 per

month in child support. The agreement specifically provided for the renegotiation

of Mr. Boutin’s child support obligation when Brian Boutin became eighteen. 

Brian Boutin turned eighteen in May 1992 shortly before completing his

junior year in high school. In June 1992 Ms. Boutin petitioned for an increase in

child support, and the parties negotiated an amendment to their marital dissolution

agreement. In return for Ms. Boutin’s agreement not to seek any future child

support increases, Mr. Boutin agreed to increase his monthly child support to

$2,250 until Brian Boutin’s expected graduation from high school in May 1993

and then to reduce it to $1,128 until Stephen Boutin’s expected graduation from

high school in May 1995.2 Mr. Boutin also agreed to prepay his entire anticipated
2

(...continued)

101(b)) provides:

Parents shall continue to be responsible for the support of each child for

whom they are responsible after the child reaches eighteen (18) years of age if the

child is in high school. The duty of support shall continue until the child

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

child attains eighteen (18) years of age graduates, whichever occurs first.

3The Missouri court has stayed the URISA proceeding pending the outcome of this case.

4The contempt matter related to Ms. Boutin’s unauthorized use of a joint line of credit

at a Nashville furniture store. Mr. Boutin appealed from the decision not to hold Ms. Boutin in

contempt, but his lawyer announced during oral argument that he was abandoning this issue.

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child support obligation for both children - $57,950 - on or before July 15, 1993.

In addition, the parties agreed that Mr. Boutin’s total obligation would be reduced

by $25,000 when he conveyed his interest in the marital home to Ms. Boutin. The

trial court entered an agreed order in June 1992 directing Mr. Boutin to pay Ms.

Boutin the remaining $32,950 by July 15, 1993.

Ms. Boutin and her two sons moved to Florida during the 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 high school, Brian decided to pursue his G.E.D. Mr. Boutin stopped

paying child support in January 1993 when he discovered that Brian had not

enrolled in high school. By that time, he had transferred his interest in the marital

home to Ms. Boutin and had paid $20,250 of his remaining $32,950 obligation.

Mr. Boutin moved to St. Louis after the divorce. In June 1993, Ms. Boutin

commenced an URISA action against Mr. Boutin in Missouri to require him to

pay his child support arrearage.3 In response, Mr. Boutin filed a petition in the

Chancery Court for Williamson County seeking to hold Ms. Boutin in contempt4

and requesting a termination of his child support obligation because he had

overpaid his obligation following Brian’s decision not to complete high school.

On August 21, 1995, 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 judgment for $15,933.33 representing the child support arrearage

and pre-judgment interest and $2,050 in attorney’s fees.
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II.

Mr. Boutin’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, lump sum amount of child support obligation even though one of his sons

had dropped out of high school. He asserts that he agreed to pay the increased

child support on the assumption that his two minor sons would complete high

school on schedule. Since the amended agreement does not specifically address

the possibility that the boys might 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 both his sons remaining in high school. 

Marital dissolution agreements are essentially contractual in the sense that

they are the product of the parties’ negotiation and agreement. See Seeber v.

Seeber, App. No. 03A01-9508-CV-00290, 1996 WL 165092, at *5 (Tenn. Ct.

App.Apr. 10, 1996); Mitchell v. Mitchell, App. No. 01A01-9206-CV-00244, 1993

WL 33765, at *4 (Tenn. Ct. App. Feb. 10, 1993). Except for legal obligations that

remain under the court’s control, see Towner v. Towner, 858 S.W.2d 888, 890

(Tenn. 1993), these agreements should be construed and enforced using the

customary principles of contract law. Bruce v. Bruce, 801 S.W.2d 102, 105

(Tenn. Ct. App. 1990) (quoting Matthews v. Matthews, 24 Tenn. App. 580, 593,

148 S.W.2d 3, 11-12 (1940)).

A parent’s obligation to support minor children is one of the legal

obligations remaining within the court’s control as long as the child is entitled to

receive support. Parents must support their non-disabled children until they

become eighteen or until their high school class graduates. See Tenn. Code Ann.

§ 34-11-102(b). The Child Support Guidelines promulgated by the Tennessee

Department of Human Services govern a parent’s minimum support obligation.

Any voluntarily assumed obligation in excess of the required minimum is

governed exclusively by the parties’ agreement. Mr. Boutin’s child support

obligation following the entry of the amended marital dissolution agreement in

June 1992 appears to exceed the guidelines in three material respects. First, the

guidelines would not require him to defray the costs of his sons’ college
5Mr. Boutin’s adjusted gross income in 1992 was $73,883. Accordingly, the child

support guidelines required him to pay approximately $1,383 in monthly child support. His

agreement to pay $2,250 until May 1993 when Brian was expected to graduate from high school

was 62% higher than the support required by the guidelines. The amount Mr. Boutin agreed to

pay for Stephen’s support after May 1993 likewise exceeds the guidelines amount.

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education. Second, the guidelines would not require him to pay as much monthly

child support as he agreed to pay.5

 Third, the guidelines would not require him

to agree to prepay the entire amount of his expected child support obligation. 

The amended marital dissolution agreement contains support obligations

that remained in the trial court’s control and other obligations controlled by the

parties’ agreement. Mr. Boutin’s prepayment obligation exceeds the legal

minimum required by the guidelines and is, therefore, governed by the terms of

the marital dissolution agreement. 

We must ascertain and give effect to the contracting parties’ mutual

intention as reflected in their agreement. Bob Pearsall Motors, Inc. v. Regal

Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn. 1975). To accomplish this

task, we must consider the entire contract without favoring either party. Omaha

Property and Cas. Ins. Co. v. Johnson, 866 S.W.2d 539, 541 (Tenn. Ct. App.

1993). We must also be guided by the written terms of the contract, Heyer-Jordan

& Assocs v. Jordan, 801 S.W.2d 814, 821 (Tenn. Ct. App. 1990), rather than by

the contracting parties’ states of mind or uncommunicated intentions. Petty v.

Sloan, 197 Tenn. 630, 642, 277 S.W.2d 355, 360-61 (1955); Bill Walker &

Assocs. v. Parrish, 770 S.W.2d 764, 770 (Tenn. Ct. App. 1989).

The fact that the parties calculated Mr. Boutin’s anticipated future child

support obligation based on Tenn. Code Ann. § 34-11-102(b) does not necessarily

mean that the parties agreed that Mr. Boutin’s obligation would decrease if either

son left high school before graduating. The record contains no indication that the

parties ever discussed, let alone agreed, how their amended marital dissolution

agreement might be affected if one or both of their sons decided to drop out of

high school. Without this evidence, we cannot condition Mr. Boutin’s contractual

agreement to prepay an agreed upon amount of alimony on both of his sons

remaining in high school. Were we to do so, we could be giving effect to Mr.
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Boutin’s uncommunicated intentions. Accordingly, we affirm the trial court’s

conclusion that Mr. Boutin is not excused from his child support obligations under

the amended marital dissolution agreement simply because Brian elected not to

complete high school.

III.

Mr. Boutin also insists that the trial court erred by not requiring Ms. Boutin

to reimburse him for a payment he was required to make to a furniture store

because of unauthorized, post-divorce charges Ms. Boutin made on a charge

account with the store. 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 for this payment.

The parties agreed in their original marital dissolution agreement that they

would not incur any debts after the divorce that could be chargeable to the other

party. Despite this agreement, Ms. Boutin purchased approximately $7,500 worth

of furniture at a Nashville store using a joint charge account that was still in Mr.

Boutin’s name. Derogatory information was placed in Mr. Boutin’s credit file

after Ms. Boutin failed to keep the account current, and this information caused

a mortgage company to decline to refinance Mr. Boutin’s mortgage until the

dispute was resolved. Even though he had not purchased the furniture, Mr. Boutin

was required to pay the furniture company $500 to resolve the problem.

The trial court declined to hold Ms. Boutin in contempt for using this

account to purchase furniture and declined to give Mr. Boutin credit for the $500

payment to Ms. Boutin’s creditor. The debt involved was a non-marital debt

incurred by Ms. Boutin after the divorce for her own benefit. Accordingly, Mr.

Boutin was not responsible for this debt, and the trial court should have given Mr.

Boutin a $500 credit on his child support arrearage to compensate him for the

$500 payment he made on Ms. Boutin’s behalf.

IV.
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Finally, Mr. Boutin asserts the trial court should have awarded him

$3,997.82 to reimburse him for the legal expenses incurred to defend against Ms.

Boutin’s demand that he honor his child support agreement. He argues that he is

entitled to these fees because Ms. Boutin breached the marital dissolution

agreement by making unauthorized charges on a joint account that should have

been closed after the divorce. This argument confuses two issues that should be

kept separate.

The first issue involves the parties’ child support dispute. Post-divorce

proceedings to collect past-due child support are primarily for the benefit of the

child or children in need of support not the custodial parent. Graham v. Graham,

140 Tenn. 328, 334-35, 204 S.W. 987, 989 (1918). Accordingly, Tenn. Code Ann.

§ 36-5-103(c) (1996) provides that a parent using the courts to enforce a child

support obligation may recover reasonable attorney’s fees from the delinquent

spouse. These fees are within the court’s discretion. Sherrod v. Wix, 849 S.W.2d

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 ample basis for the

trial court’s decision to order Mr. Boutin to pay Ms. Boutin $2,050 for the legal

expenses she incurred.

The second issue involves Mr. Boutin’s efforts to recover the $500 he paid

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

provision in the marital dissolution agreement authorizing either party to recover

the legal expenses incurred as a result of the other party’s breach. We have

carefully reviewed the billing information submitted by Mr. Boutin’s lawyer.

While we have no doubt that the time and charges reflected therein are reasonable

and appropriate, we are unable to determine what portion of the lawyer’s time was

spent defending Ms. Boutin’s claim for child support arrearages and what portion

was spent pursuing Mr. Boutin’s claim for the $500 he paid on Ms. Boutin’s postdivorce furniture debt. Without this information, and in light of the fact that the

primary contested issue between the parties concerned Mr. Boutin’s child support

obligation, we find that the trial court properly declined to require Ms. Boutin to

reimburse Mr. Boutin for any portion of his legal expenses. 
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V.

We affirm the trial court’s conclusion that Mr. Boutin remains liable for the

entire amount of the child support he agreed to pay in the amended marital

dissolution agreement. On remand, however, we direct the trial court to give Mr.

Boutin a $500 credit on the original judgment in recognition of the payment he

was required to make to one of Ms. Boutin’s creditors. We also tax the costs of

this appeal to Francis John Boutin and his surety for which execution, if

necessary, may issue.

____________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

________________________________

SAMUEL L. LEWIS, JUDGE 

________________________________

BEN H. CANTRELL, JUDGE