IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 4, 2011

TOMMY K. HINDMAN v. LOUISE HELEN HINDMAN

Appeal from the Chancery Court for Knox County

No. 134307-2 Daryl R. Fansler, Chancellor

No. E2010-01052-COA-R3-CV - Filed February 11, 2011

Louise Helen Hindman (“Wife”) and Tommy K. Hindman (“Husband”) were divorced in

August of 1997, at which time the trial court approved a marital dissolution agreement (“the

MDA”) submitted by the parties. Relevant to the instant case, the MDA addressed future

medical and educational expenses for the parties’ minor child (“Son”). After Wife refused

to reimburse Husband in compliance with the pertinent provisions of the MDA, he filed a

petition seeking to have her held in contempt. The trial court ultimately ordered Wife to pay

$43,678. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed; Case Remanded

JOHN W. MCCLARTY,J., delivered the opinion of the Court, in which HERSCHEL P. FRANKS,

P. J., and D. MICHAEL SWINEY, J., joined.

Christopher D. Heagerty, Knoxville, Tennessee, for the appellant, Louise Helen Hindman

(Dover).

James S. Sharp, Knoxville, Tennessee, for the appellee, Tommy K. Hindman.

OPINION

I. BACKGROUND

The pertinent provisions of the MDA at issue are as follows:

1. CHILD CUSTODY: The parties shall have joint custody of their minor

child, Tommy K. Hindman, II (“T.K.”) born on November 12, 1987. The
parties shall consult with one another on all major decisions involving the

child’s health, general welfare, overall care and maintenance, and education.

Each shall make every effort to reside in close proximity to the child’s school.

Recognizing that the child has resided and developed extensive ties with Knox

County, neither party shall attempt to move from the jurisdiction of the Court

with the child, absent a court order modifying this provision.

2. VISITATION PLAN: The parties agree to a visitation plan as follows:

A. Weekly Schedule: The parties shall have alternating weeks of visitation

time with the minor child with the exchange to take place on Sunday evenings.

Each party shall have telephone access to the child on a 24 hour basis.

* * *

5. CHILD’S MEDICAL EXPENSES: The Husband shall maintain major

medical and hospitalization insurance on the parties’ minor child until said

child attains majority or his class graduates from high school, whichever is

later. All medical, pharmaceutical, orthodontic, optical, psychological and

dental expenses not covered by said insurance shall be borne by the Husband

until re-marriage of the Wife at which time all of the aforementioned medical

expenses will be paid equally. . . .

6. CHILD’S EDUCATIONAL EXPENSES: The parties agree that each shall

pay one-half (1⁄2) of the educational expenses of their child, including books,

tuition, room and board, as long as the child is making satisfactory progress in

school. This obligation applies to any education endeavor of the child that the

parties, as joint custodians, agree upon, including private elementary, middle

and high school and any college expenses, up to the cost of the University of

Tennessee. However, when the child reaches college level, the college fund

presently in existence at Morgan Keegan shall be used to satisfy his college

expenses prior to any contribution being required of either party. Any college

funds set aside in the future by either party, plus any income generated thereby,

shall be used to satisfy that party’s obligation to pay one-half (1⁄2) of education

expenses.

The existing educational fund with Morgan Keegan Brokerage shall remain

there with both parties as joint custodians of said account, pursuant to T.C.A.

§ 35-7-211, and both parties’ signatures will be necessary for withdrawal of

any funds unless either party is deceased.

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It is the intention of the parties that they will make application to Webb

[S]chool of Knoxville for T.K. beginning in the Fall of 1998. Each party will

be responsible for fifty percent (50%) of all Webb tuition and expenses.

However, if the child attends Webb or any other private preparatory school and

the Wife remains unmarried and financially unable to bear her portion of said

expenses, the Husband, will, as additional periodic alimony, pay all of the

tuition and expenses until the Wife is either re-married or her economic

situation is such that she can bear the expenses.

* * *

Husband initiated this contempt action in August 2006. After a hearing on February

2, 2009, a memorandum opinion and order was entered three days later in which the trial

court held, inter alia, as follows:

At the time of the divorce the parties contemplated that their minor son, T.K.,

would attend Webb School if he were admitted. He was admitted to Webb and

essentially attended school there from the fall of 2000 until the fall of 2004, at

which time he was expelled forfeiting the entire tuition for the 2004-2005

school year. Husband paid a total of $63,481.00 for the Webb tuition and

seeks one-half of that from [Wife].

The MDA obligates the wife to contribute one-half of the Webb tuition or that

of any private preparatory school unless “wife remains unmarried and

financially unable to bear her portion of said expenses.” In that case, husband

agreed to “bear her portion” of those expenses as additional periodic alimony

“until wife is either remarried or her economic situation is such that she can

bear the expenses.” Wife says that prior to the filing of this petition the only

time husband expressed an intention to seek contribution from her was in a

letter of July 28, 2006. That letter, Ex. 1, pertained to the son’s enrollment at

Austin Peay University and no other educational expenses were referenced.

Wife remarried on June 17, 2000. The record is silent as to how the parties

treated the Webb School tuition and associated costs either before or after her

remarriage. The Court does not know whether husband deducted one-half of

the educational expenses on his federal income tax return nor whether wife

claimed the educational expenses as income even though paragraph 7 of the

MDA provided that periodic alimony would be includable/deductible.

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There is no proof in the record as to what wife is capable of earning.

Petitioner testified that during the marriage the wife worked as an interior

decorator. There is no proof as to her earnings nor whether she worked prior

to their son entering school on a full time basis.

Wife currently is not employed. She testified that she cares for her two

children, ages 6 and 4. She also cares for her grandson (T.K.’s son born out

of wedlock).

Reading the last sentence of paragraph 6 in total, and applying a construction

that renders all parts of the sentence effective, the Court concludes that it was

the intent of the parties that husband would pay the Webb School tuition if

wife remained unmarried and unable to pay her share, or until she became

financially able to pay even if she remained unmarried. This construction

would allow the husband any tax benefits that might be available to him until

she remarried yet does not impose a burden upon her, which she could not

financially perform. To construe the sentence otherwise would impose upon

wife an obligation to pay upon remarriage even if she remained financially

unable to do so.

Collective Ex. 2 is comprised of respondent’s joint tax return for the years

2004 and 2005. The 2005 return attributes income to her from an interior

design business. The gross income was listed at $2673.00 and net income of

$1054.00. The Court can find no income attributed to wife in the 2004 return.

The Court has no other evidence before it regarding wife’s prior earnings. She

did testify that she had not worked full time since the birth of her second child.

There is no information from which the Court can even determine what she

might be capable of earning. The Court finds that respondent is not

responsible for one-half of the Webb School tuition because husband has

not established by a preponderance of the evidence that she has ever become

financially able to bear that expense.

After the son’s expulsion from Webb School and after having completed an

intensive residential program to address his drug and alcohol abuse, along with

other psychological problems, the son was enrolled at St. Andrews School at

Sewanee. Husband testified that the parties agreed to St. Andrews because it

was a school with a “rolling enrollment” and was relatively close by. Wife

testified that she vehemently objected to enrollment in St. Andrews. In fact,

her un-rebutted testimony was that her current husband proposed to petitioner

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that the child reside locally week on and week off with his parents and go to

school in Knoxville.

Wife’s testimony regarding her objections is logical and reasonable given the

circumstances. Further, St. Andre[w]s is governed by paragraph 6 of the

MDA. Again, the Court has no basis to determine her ability to pay one-half

of the tuition at St. Andrews.

Son was expelled from St. Andrews prior to completing a single semester.

Thereafter, he was enrolled at Farragut High School again from which he was

expelled. In the interim he had run away from home and was facing

delinquency charges in Juvenile Court. Somewhere along the way he obtained

his general equivalency diploma. In the summer of 2006, son learned that he

had impregnated his girlfriend and that she was expecting a child.

On July 28, 2006, Ex. 1 was written from Mr. Hindman to [Wife]. The letter

is self-explanatory but basically advises her that T.K. will be enrolled at Austin

Peay University for the fall semester.

Again, [Wife] asserts that she strongly objected to her son going to Austin

Peay. He had just been expelled from two private and one public high schools.

He had just completed another intensive drug rehabilitation program at

Cornerstone. Austin Peay was being chosen because it would accept a general

equivalency diploma. The son had just learned that he was the father of a

child. [Wife] testified that he was continuing to abuse drugs and alcohol.

Ex. 1 indicates Mr. Hindman had discussed Austin Peay with T.K. However,

there is no mention of discussion with [Wife]. She testified that petitioner said

that he was “shipping him (T.K.) off to Austin Peay.” There is nothing in this

letter to reflect an agreement to send the child to Austin Peay. Wife is not

responsible for one-half of the associated costs.

As it turns out it appears that [Wife’s] concerns were well founded. T.K. did

not complete the semester at Austin Peay and returned to Knoxville.

Ultimately he was enrolled at Pellissippi S[t]ate Community College and

apparently has obtained an Associate’s Degree there.

Wife again denies that she agreed to placement at Pellissippi State. She

testified that her son was using drugs heavily at the time he enrolled. He had

failed to complete a semester of college. It can hardly be said that he was

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progressing satisfactorily in his education at that time. Wife testified that

because of continuing drug and alcohol use she felt that he would fail. She

also testified that she felt that money would be better spent on treatment and

that further treatment should be obtained instead of spending money on

education. Again, the Court finds that there was no agreement as to the

enrollment at Pellissippi State Community College.

Upon completion at Pellissippi State the son enrolled at the University of

Tennessee. Petitioner testified that their son is now classified as a junior at the

University of Tennessee and is only one semester behind his classmates from

high school. It would appear that he is now satisfactorily progressing although

neither side offered evidence to support this.

Wife argues that she cannot afford the University of Tennessee because she is

not working. There is no “ability to pay” limitation regarding college. Wife

agreed to pay one-half of the costs limited to that which would be charged

by the University of Tennessee. Therefore, as long as he is satisfactorily

progressing in school and absent some reasonable basis for not agreeing to

his enrollment at the University of Tennessee, wife is obligated to pay onehalf of the education expenses.

However, Ex. 4 submitted by [Husband] shows that his expenditures include

a generous allowance for food, cable television, cell phone, gasoline for the

son’s car and so forth. Wife’s responsibility to pay is limited to the costs of

tuition, housing, and food costs that would not exceed that which the

University of Tennessee would normally charge.

. . . Here the parties agreed that the University of Tennessee would be the

benchmark for education expenses and further agreed that those expenses

would be reasonable. . . .

After expulsion from Webb School the son attended the SUWS of Carolina

program (referred to as the Wilderness program). The Court finds that the

parties did agree that this was a reasonable and necessary program and the

mother should pay one-half of that fee, as well as one-half of the fee of Mary

Consoli, Education Consultant.

CONCLUSION

The Court observes that in order to require contribution toward education

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expense there must be an agreement between the parties as to the school the

son will attend. Further, there must be a showing that the child is satisfactorily

progressing with his education.

* * *

The petition asks that [Wife] be found in contempt of court for a willful failure

to follow the court’s orders. [Wife] testified that prior to the filing of the

petition she had never been asked to pay anything toward either the treatment

at the Wilderness program nor education expenses. She explained that in

regard to the Wilderness program she was under the impression that it was

covered by husband’s insurance. Although husband indicated that the

insurance did not cover it there was no proof that wife was ever advised that

it did not.

Therefore, the Court declines to hold the wife in contempt.

Furthermore, prior to any contribution by the wife toward the education

expenses the Morgan Keegan fund shall be applied to those costs.

* * *

(Emphasis added.) Husband subsequently filed a petition for a new trial or to alter or amend

final judgment, arguing as follows:

[P]ursuant to Paragraph Six (6) of the [MDA] the parties agreed that each

party would pay one half (1⁄2) of the educational expenses of the child,

including books, tuition, room and board as long as the child was making

satisfactory progress in school. The obligation applied to any education

endeavor of the child that the parties, as joint custodians, agreed upon,

including private, elementary, middle, high school and any college expenses

up to the cost of the University of Tennessee.

That pursuant to the last paragraph on page six (6) of the [MDA], the parties

clearly agreed that the minor child would be applying to Webb School in the

fall of 1998. The [MDA] also states that “if the child attends Webb or any

other private preparatory school and the Wife remains unmarried and

financially unable to bear her portion of said expenses the Husband will, as

additional periodic alimony, pay all of the tuition and expenses until the Wife

is either remarried or her economic situation is such that she can bear this

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expense.”

That based upon the express language of the [MDA] the parties clearly

anticipated the Wife becoming financially able upon remarriage. Therefore,

they used the conjunction “or” as opposed to the conjunction “and.”

(Emphasis provided by Husband). After Husband’s motion was heard by the trial court, an

order modifying the original judgment was entered April 14, 2010, nunc pro tunc to May 18,

2009. The order provided as follows:

Mother is required to reimburse the Father one half (1⁄2) the cost for Mary

Consoli, Educational Consultant ($4,250.00), SUWS of Carolina ($19,625.00).

. . . Mother is also responsible for one half (1⁄2) of the cost of Webb School

from June, 2000, through February 2, 2009. The total cost for Webb School

was Sixty Three Thousand Four Hundred Eighty One Dollars ($63,481.00).

. . . Mother shall owe the Father one half (1⁄2) of the cost as outlined above for

a total of Forty Three Thousand Six Hundred Seventy Eight Dollars

($43,678.00) as of February 2, 2009.

* * *

Wife filed a timely appeal.

II. ISSUE

We restate the issue presented by Wife as follows:

Did the trial court err in entering judgment for Husband upon a petition for

contempt based upon a MDA providing for educational expenses when

Husband, who was the proponent of the MDA, failed to introduce proof that

a condition precedent to Wife’s obligation to perform under the MDA had

occurred.

III. STANDARD OF REVIEW

The factual findings of the trial court are accorded a presumption of correctness, and

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we will not overturn those factual findings unless the evidence preponderates against them.

See Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With

respect to legal issues, our review is conducted “under a pure de novo standard of review,

according no deference to the conclusions of law made by the lower courts.” Southern

Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

IV. DISCUSSION

Wife admits that the parties entered into a contract to essentially split Son’s

educational and medical expenses. She claims, however, that the duty to pay one-half of the

educational expenses of Son was conditioned upon the child making “satisfactory progress

in school.” Wife asserts that this obligation was to apply to any educational endeavor of Son

that the parties, as joint custodians, agreed upon, including private elementary, middle and

high school, and any college expenses up to the cost of the University of Tennessee. Wife

argues that as the proponent of the MDA, Husband bore the burden of proof with regard to

fulfillment of the condition precedent to Wife’s duty to pay her share of Son’s educational

expenses. See John H. Moore & Sons v. Adams, 324 S.W.2d 499, 501 (Tenn. Ct. App. 1959).

She asserts that because there was no proof in this action with regard to Son’s “satisfactory

progress” at Webb or any other institution, her duty to pay per the terms of the MDA was

never triggered. The court specifically held in its memorandum opinion and order “that in

order to require contribution toward education expense . . . there must be a showing that the

child is satisfactorily progressing with his education.”

Contracts reserving to one party the right of satisfaction or approval of certain acts or

conditions as a condition precedent to performance are recognized as valid in Tennessee.

Robeson & Weaver v. Ramsey, 245 S.W. 413 (Tenn. 1922). A condition precedent assumed

by a party must be fulfilled by him before he can demand performance of the other party.

Interstate Bldg. Corp. v. Hillis, 66 S.W.2d 597 (Tenn. Ct. App. 1933); Mack v. Hugger Bros.

Constr. Co., 10 Tenn. App. 402 (1929).

Husband contends that Wife failed to plead or otherwise try by consent or implication,

the affirmative defense of the non-performance of a condition precedent. Husband notes that

as required by Tenn. R. Civ. P. 8.01, his petition set forth in numbered paragraphs a short and

plain statement of his claim and entitlement to reimbursement of one-half of certain

expenses. He argues that under Tenn. R. Civ. P. 8.02, Wife likewise was required to “state

in short and plain terms . . . her defenses to each claim asserted and . . . admit or deny the

averments upon which the adverse party relies. . . .” He further observes that under Rule

8.03, Affirmative Defenses, Wife was required to:

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set forth affirmatively facts in short and plain terms relied upon to constitute

accord and satisfaction, arbitration and award, . . . estoppel, failure of

consideration, . . . and any other matter constituting an affirmative defense. .

. .

In paragraph 3 of Husband’s petition for contempt, Husband averred that he had

personally paid all the educational expenses for Son at Webb. Wife admitted to this

averment in her answer and amended answer, without qualification or assertion of any

defense as to the non-performance of a condition precedent. Paragraphs 5 and 8 of the

petition alleged Husband’s payment for the residential treatment program and Wife’s refusal

to pay for one-half of its cost. The answer and amended answer of Wife admit refusing to

pay one-half of the cost but only qualify or defend on the bases of lack of consultation or

possible insurance coverage, not because of non-performance of any condition precedent.

Although Wife specifically set forth fourseparate affirmative defensesin her original answer

and eight separate affirmative defenses in her amended answer, she failed to plead or even

mention the affirmative defense of non-performance of a condition precedent. Furthermore,

Wife admits that she failed to put on any proof at trial of what she considered to be

“satisfactory progress in school.” She did not raise the argument that Husband had neglected

to establish that Son’s progress at Webb, prior to the expulsion, was unsatisfactory.

1

Clearly, “[t]he non-performance of a condition precedent is an affirmative defense that

must be plead. Tenn. R. Civ. P. 9.03. If it is not properly raised in the trial court, it will not

be considered on appeal.” Harlan v. Hardaway, 796 S.W.2d 953, 957 (Tenn. Ct. App. 1990)

(citing Mack v. Hugger Bros. Constr. Co., 10 Tenn. App. 402, 419 (1929)). Wife simply

failed to plead or otherwise properly raise the affirmative defense of non-performance of a

condition precedent at the trial court level. As a result, we find that the affirmative defense

of non-performance of a condition precedent has been waived and cannot and will not be

considered for the first time on appeal. Harlan, 796 S.W.2d at 957.

As to the assessment for one-half of medical expenses not covered by Husband’s

insurance, the MDA clearly provides that “[a]ll medical, pharmaceutical, . . . psychological

. . . expenses not covered by said insurance shall be borne by the Husband until re-marriage

of the Wife at which time all of the aforementioned medical expenses will be paid equally

. . . .”

We note that the trial court determined Wife “vehemently objected to enrollment in St. Andrews,”

1

“strongly objected to herson going to Austin Peay,” and “denie[d] that she agreed to placement at Pellissippi

State.” Regarding Webb, the record is silent, other than the fact that Son attended there for four years - Fall

2000 to Fall 2004.

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We find the trial court’s interpretation of the provisions of the MDA relating to

educational and medical expenses is supported by a preponderance of the evidence.

V. CONCLUSION

The judgment of the trial court is affirmed and this case is remanded for collection of

the costs below. Costs on appeal are taxed the appellant, Louise Helen Hindman (Dover).

_________________________________

JOHN W. McCLARTY, JUDGE

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