# FILED
July 9, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk Mary Jane Bohlen Duggan ) ) Appeal N o. Plaintiff /Appella nt, ) 01-A-01- 9611-CV- 00535

) v. ) Davidson C ircuit ) No. 85D -195 Frederick Louis Bohlen, III, ) ) Defendant/Appellee. )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE
APPEAL FOR THE SECOND CIRCUIT COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE
THE HONORABLE MARIETTA M. SHIPLEY, JUDGE

DAVID W. KIOUS 1535 West Northfield Boulevard 8 Lincoln Square Murfree sboro, T ennessee 37216 ATTORNEY FOR PLAINTIFF/APPELLANT KATHRYN G. BRINTON 43 Music Squ are W est Nashville , Tenne ssee 37203 ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

SAMUEL L. LEWIS, JUDGE2 

## O PINION This is an appea

l by pet itioner/a ppellant, Mary

Jane Bohlen Duggan, from the decision of the tri al court m odif ying the child su

pport obliga

tion of respondent/appellee, Freder ick L ouis Bohlen, III, and interpreting the parties’ m arital dissolution

agreemen t (“MDA”) and a later amendm ent to the MDA. The court concluded Mr. Bohlen was not in contempt and required him to pay $860.00 per month for the pa rties’ younges t child, $2 50.00 per month for each child over eighteen and under twenty -two prov ided the child is receivin g a postgraduate educ ation, an d one-half of the chil dren’s postgradua te educat ion expense s. The facts out of which this ma tter aro se are a s follows.
Ms. Duggan and Mr. Bohlen were divorced on 9 May 1985. T he final divorce decree included an MDA. The par ties had thr

ee childr en: Jennifer Sue Bohlen, born 24 September 1974; Ally son Reed Bohlen , born 20 J anuary 1977; and Julie Kay Bohlen, born 18 May 1979. The MDA aw arded custody of the c hi ldren to Ms
. Duggan and

provided: 2. The father, Frederick L ouis Bohlen, II I, willpay unto Mary Jane Bohlen, the total s um of $750.00 . . . per m onth as child sup port .

. . . The apportione d share to b e reduce d on the eight eenth birt hday of each child, unless the child chooses to attend post high sch oo l education; then the pa

ym ents shall c ontinue until

age 22.

. . . . 5. Each pa rty sha

ll pay one-half

of the expenses of post high school educ ation for e ach of the children. The court ente

red an agr

eed o rder on 28 Jan uary 1 991. The order pro vided: “ The parties are further in agreem ent that an increase in child support should occur and that the monthly amount of chi ld supp ort shou ld be $1,3 50.00 . . . . The setting of c hild support in the amount of $1,350.00 per month comports with the child support guideli nes promulgat ed by the Tennes see Department of Hu man Services.”
Ms. Duggan fi led a petit

ion for contempt an d an increa se in child s upport in the Circuit Cou r t of Davidson County on 23 October 1995. Ms. Duggan alleged Mr. Bohlen had been la

te with his monthl y payments , there had been a substant ial and materialchange in circ um stances requiring an increase in support, and Mr. Bohlen had not paid one- half of

the child ren’s postg raduate edu cation ex penses. Mr. Bohlen answered and filed a coun ter-petiti on. Mr. Bohlen claimed the court should reduce1 It is th e opinion o f this cou

rt that it isinappropriate to decide cases without taking evide nce or receiving stipulations
. In this case, however , the error was harmless as the parties ar e in general agreement

as to the facts. Compare Brooks v. Brooks , No. 01-A -01- 9607- CV-0 0312, 1997 W L 83664 (Tenn. App. 26 Feb. 1997)(remand a second circuit court decision for an evidentiary hearing). 3 the mont hly s upp ort bec aus e two of t he c hil dre n ha d rea che d th e ag e of ma jori ty.
The court held

a hearingon 3 June 1996. Instead of taking evid e nce and hearing formaltestim

ony, t he attorneys sim

ply pre sented the facts to t he court. 1 The courtentered its final order on 19 June 1996 and found there was no contempt
. The courtalso mod ified the c hild support t o conform

with the c hild support g uidelines; thus, the courtrequired

Mr. Bohl en to pay

$860.00 per month for Jul ie Kay Bohlen. The courtde termined the MDA contained a contractual duty of support which required Mr. Bohlen to pay $250.00 per m onth for each child over

eighteen a

nd under twenty-two provided the child is re ceiving a p ostgraduat e educati on. More over, the courtconcluded the 1991 agreed order did n ot alter th is contrac tual dut y. Finally , the courtheld Mr. Bohlen re spo nsi ble for one -half of the childr en’s post graduate education expenses i ncluding tuit

ion, acti vityfees, g raduation f ees, ori entation

fees, and reasonabl e room

and board expenses, b ut not includi ng sorority fee s or transporta

tion costs.
Ms. Duggan fi led a tim

ely not ice of app eal. On appea

l, Ms. D uggan conte nds th e 1991 ag reed order modified Mr. B ohlen’s contractual support obligation. Mr. Duggan disagree s and raise s two issue s. First , he argu es the MDA only required he pay a total of $750.00 per month and he should not have to pay any additional support if his statutor

y obliga tion excee ds $750.00. Second, he insists the courterred when itrequired

him to pay ro om and

board expenses a s part of the chil dren’s education expenses.
We review the trial court ’s findi ng s of fact pursuant to Rule 13(d) of the Tennessee Rules of

Appellate Pr ocedure. Thus, the trial court’s factual findings are presumed correct unless the preponderanceof the evid ence is oth erwise. “No such presum ption attaches to the trial court’s conclusions of law.” Jahn v. Jahn , 932 S.W. 2d 939,941 (Tenn. App. 1996). There is no doubt and the parties agreethe MDA created both a statutory a

nd a contractu al oblig ation. See Penland v. Penland , 521 S.W. 2d 222, 224 (Tenn. 1975). Thus, the issues presented here involve the extent of4

these obliga

tions and w hether the

parties or

the court m

odified the

obligations.
Statutes and regulations control the extent of Mr. Bohlen’ s statutory obligation whilethe partie s’ intentions contro l the exten t of his co ntractua

l obligation. This courtmust a scertain

the partie s’ intentio ns and gi ve them effect. Perry v. Sloan , 197 Tenn. 630, 642, 2 77 S.W .2d 355, 36 0 (Tenn. 1955). “In gettingat this intentio n we of course do not determine wha t th e st ate of t he mi nd was of t he p art ies at t he t ime the contract

was exec uted but ra

ther wha t t hei r intention was as actually em bodied and expressed in the instrument as written.” Id. This dete rmina tion is a question of law when the l anguage is p lain and una mbiguou s . Id. at 361. T

he fact t he partie s’ disagree over the interpretation of a particular contract provision does not create an ambig uit y. Cookevil

le Gynecology & Obstetric s, P.C. v. Southeast ern Data Sys., Inc. , 884 S.W .2d458, 462 (T enn. App. 1994). “‘A contract is ambiguous only when itis of uncer

tain mean ing and may fairly be underst ood in more ways than one. A strained construct

ion ma y not be placed on t

he language used to find ambiguity where
none exists.’” Id. (quoting Farmers-Peoples Bank v. Clemner , 519 S.W .2d 801, 80 5 (Tenn. 1975)). I

t is the opini on of this co urt that the language in both t he MDA and the 1991 agree d order is unambiguou s. Although the parties’ interpretations differ, the langu age may fairly be understo od in onl y one way.
The MDA as originally

drafted required

the follow ing of Mr. Bohlen: fi rst, the statutory obligation

required Mr. Bohl en to make

monthl y child

support pay

ments of $750.00 and second, the contra ctual obliga

tion requir

ed Mr. B ohlen to c ont inue payingthe apport

ioned share

applicabl e to a chil d, $250.00, when a child reaches age eighteen and choos es to continue h er educa tion. Thi s obligation c ontinues as l ong as the chil d is rece iving a postgraduate ed ucation and

is under tw enty- two.
Itis Ms. Duggan’ s contention that the 199 1 agreed o rder m odified both obligations. We disagree. Although the term child support as used in the o rder coul d refer to both obligations, it is the opinion of this court that the use of the ter m alon g withreferences to the

child su pport guid elines indi cate the order applied to the statutor y obligatio n only. Moreover , the orde r does not m

ention or r

efer to t he contractual obligation or

post-m ajority

support. For these

reason, it is the opi nion of this court thatthe 1991 agr eed order modif ied only the statutory obli gation. B ecause5

the contractu al oblig ation wa s not modi fied, Mr . Bohlen’ s contrac tual obligat ion remains the sam

e.
Mr. Bohlen argues the MDA obligates him to pa

y at m ost $750.00, but adm

its the statutory

obligation c ould excee d this am ount. Mr. Bohlen the n asserts h e should onlyhave to pay

$750.00 if his statutor

y obliga tion excee ds $750.00 . We can not agree. Mr. Bohlen relies on the language “the totals um of $750.00" to s upport his assertion. It is t

he opinion of thi s court tha t when this phrase is r

ead in the c ontext of the entire

paragra ph it clear

ly re fers to the

amount to be paid f

or all thr ee of the children, not a m aximu m am ount of suppor

t.
The MDA did not set a support ceiling, an d the 1991 a greed orde r did not amen d Mr. Bohl en’s co ntractua l obligation. Given the

clear language of the MDA, itis the opinio n of this cou rt t hat the trial court correctly determ ined the issues relating t o Mr. Bohlen’s st atutory

and contra

ctual suppor

t obligations
. We now turn to the education expense issue. We can not agree with the trial court ’s conclusion that the phrase “expenses of post high school education” as used in this case includes room and board. Ms. Duggan relies on Acosta v. Acosta , No. 03

- A-01-9403 -CV-0008 1, 1994 Tenn. App. LEXI S 43 3 (Tenn. App. 8 A ug. 1994), to support her clai m that

the expense s include

room and board. The facts of Acosta are dist inguishable

from the instant

case. T he obligor i n Acosta had not ente red into a contractual agreem

ent to pay post-m ajority

support or e ducation

expenses. Instead, the c ourt ordered the obligor to pay a portion of his statutory child support into an educational fund. T

he court th en restat

ed the tria

l c ourt’s l ist of those

item s to be paidout of the

fund which included room and board. In this case, Mr. Duggan agreed in two separate

paragra phs to pay bot

h post-majority

support and e ducation ex penses. After reading th ese two paragra phs together , we m

ust conclude

the phrase “expenses of post high scho ol educati on” does not include ro om and board. Any ot her read ing would be r

edundant.
Therefore, it follow s that the de cision of th e trial c ourt is aff irme d in part and reversed in p art. The case is rem anded to the court for any further necessary proceedin gs. Costs on app eal are taxed equa

lly to pe tition er/appel la nt, Mary

Jane6

Bohlen Duggan, and respondent/appellee, Frederick Louis Bohlen, III.

_________________

______________ SAMUEL L . LEWIS, JUDGE

CONCUR:

_______________________________ HENRY F. TODD, P.J., M.S.

_______________________________ WI LL IA M C. K OCH , JR. , J.