FILED

July 9, 1997

Cecil W. Crowson

Appellate Court Clerk

Mary Jane Bohlen Duggan )

) Appeal No.

Plaintiff/Appellant, ) 01-A-01-9611-CV-00535

)

v. ) Davidson Circuit

) 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

Murfreesboro, Tennessee 37216

ATTORNEY FOR PLAINTIFF/APPELLANT

KATHRYN G. BRINTON

43 Music Square West

Nashville, Tennessee 37203

ATTORNEY FOR DEFENDANT/APPELLEE

AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED

SAMUEL L. LEWIS, JUDGE
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OPINION

This is an appeal by petitioner/appellant, Mary Jane Bohlen Duggan, from the

decision of the trial court modifying the child support obligation of

respondent/appellee, Frederick Louis Bohlen, III, and interpreting the parties’ marital

dissolution agreement (“MDA”) and a later amendment to the MDA. The court

concluded Mr. Bohlen was not in contempt and required him to pay $860.00 per

month for the parties’ youngest child, $250.00 per month for each child over eighteen

and under twenty-two provided the child is receiving a postgraduate education, and

one-half of the children’s postgraduate education expenses. The facts out of which

this matter arose are as follows.

Ms. Duggan and Mr. Bohlen were divorced on 9 May 1985. The final divorce

decree included an MDA. The parties had three children: Jennifer Sue Bohlen, born

24 September 1974; Allyson Reed Bohlen, born 20 January 1977; and Julie Kay

Bohlen, born 18 May 1979. The MDA awarded custody of the children to Ms.

Duggan and provided:

2. The father, Frederick Louis Bohlen, III, will pay unto Mary

Jane Bohlen, the total sum of $750.00 . . . per month as child support .

. . . The apportioned share to be reduced on the eighteenth birthday of

each child, unless the child chooses to attend post high school

education; then the payments shall continue until age 22.

. . . .

5. Each party shall pay one-half of the expenses of post high

school education for each of the children.

The court entered an agreed order on 28 January 1991. The order provided: “The

parties are further in agreement that an increase in child support should occur and that

the monthly amount of child support should be $1,350.00 . . . . The setting of child

support in the amount of $1,350.00 per month comports with the child support

guidelines promulgated by the Tennessee Department of Human Services.”

Ms. Duggan filed a petition for contempt and an increase in child support in the

Circuit Court of Davidson County on 23 October 1995. Ms. Duggan alleged Mr.

Bohlen had been late with his monthly payments, there had been a substantial and

material change in circumstances requiring an increase in support, and Mr. Bohlen

had not paid one-half of the children’s postgraduate education expenses. Mr. Bohlen

answered and filed a counter-petition. Mr. Bohlen claimed the court should reduce
 1 It is the opinion of this court that it is inappropriate to decide cases without taking evidence or

receiving stipulations. In this case, however, the error was harmless as the parties are in general

agreement as to the facts. Compare Brooks v. Brooks, No. 01-A-01-9607-CV-00312, 1997 WL

83664 (Tenn. App. 26 Feb. 1997)(remand a second circuit court decision for an evidentiary hearing).

3

the monthly support because two of the children had reached the age of majority.

The court held a hearing on 3 June 1996. Instead of taking evidence and

hearing formal testimony, the attorneys simply presented the facts to the court.1

 The

court entered its final order on 19 June 1996 and found there was no contempt. The

court also modified the child support to conform with the child support guidelines;

thus, the court required Mr. Bohlen to pay $860.00 per month for Julie Kay Bohlen.

The court determined the MDA contained a contractual duty of support which

required Mr. Bohlen to pay $250.00 per month for each child over eighteen and under

twenty-two provided the child is receiving a postgraduate education. Moreover, the

court concluded the 1991 agreed order did not alter this contractual duty. Finally, the

court held Mr. Bohlen responsible for one-half of the children’s postgraduate

education expenses including tuition, activity fees, graduation fees, orientation fees,

and reasonable room and board expenses, but not including sorority fees or

transportation costs.

Ms. Duggan filed a timely notice of appeal. On appeal, Ms. Duggan contends

the 1991 agreed order modified Mr. Bohlen’s contractual support obligation. Mr.

Duggan disagrees and raises two issues. First, he argues 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 statutory obligation exceeds $750.00. Second, he insists the court erred when

it required him to pay room and board expenses as part of the children’s education

expenses.

We review the trial court’s findings of fact pursuant to Rule 13(d) of the

Tennessee Rules of Appellate Procedure. Thus, the trial court’s factual findings are

presumed correct unless the preponderance of the evidence is otherwise. “No such

presumption 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 agree the MDA

created both a statutory and a contractual obligation. See Penland v. Penland, 521

S.W.2d 222, 224 (Tenn. 1975). Thus, the issues presented here involve the extent of
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these obligations and whether the parties or the court modified the obligations.

Statutes and regulations control the extent of Mr. Bohlen’s statutory obligation

while the parties’ intentions control the extent of his contractual obligation. This

court must ascertain the parties’ intentions and give them effect. Perry v. Sloan, 197

Tenn. 630, 642, 277 S.W.2d 355, 360 (Tenn. 1955). “In getting at this intention we

of course do not determine what the state of the mind was of the parties at the time

the contract was executed but rather what their intention was as actually embodied

and expressed in the instrument as written.” Id. This determination is a question of

law when the language is plain and unambiguous. Id. at 361. The fact the parties’

disagree over the interpretation of a particular contract provision does not create an

ambiguity. Cookeville Gynecology & Obstetrics, P.C. v. Southeastern Data Sys.,

Inc., 884 S.W.2d 458, 462 (Tenn. App. 1994). “‘A contract is ambiguous only when

it is of uncertain meaning and may fairly be understood in more ways than one. A

strained construction may not be placed on the language used to find ambiguity where

none exists.’” Id. (quoting Farmers-Peoples Bank v. Clemner, 519 S.W.2d 801, 805

(Tenn. 1975)). It is the opinion of this court that the language in both the MDA and

the 1991 agreed order is unambiguous. Although the parties’ interpretations differ,

the language may fairly be understood in only one way. 

The MDA as originally drafted required the following of Mr. Bohlen: first, the

statutory obligation required Mr. Bohlen to make monthly child support payments of

$750.00 and second, the contractual obligation required Mr. Bohlen to continue

paying the apportioned share applicable to a child, $250.00, when a child reaches age

eighteen and chooses to continue her education. This obligation continues as long

as the child is receiving a postgraduate education and is under twenty-two.

It is Ms. Duggan’s contention that the 1991 agreed order modified both

obligations. We disagree. Although the term child support as used in the order could

refer to both obligations, it is the opinion of this court that the use of the term along

with references to the child support guidelines indicate the order applied to the

statutory obligation only. Moreover, the order does not mention or refer to the

contractual obligation or post-majority support. For these reason, it is the opinion of

this court that the 1991 agreed order modified only the statutory obligation. Because
5

the contractual obligation was not modified, Mr. Bohlen’s contractual obligation

remains the same.

Mr. Bohlen argues the MDA obligates him to pay at most $750.00, but admits

the statutory obligation could exceed this amount. Mr. Bohlen then asserts he should

only have to pay $750.00 if his statutory obligation exceeds $750.00. We can not

agree. Mr. Bohlen relies on the language “the total sum of $750.00" to support his

assertion. It is the opinion of this court that when this phrase is read in the context

of the entire paragraph it clearly refers to the amount to be paid for all three of the

children, not a maximum amount of support.

The MDA did not set a support ceiling, and the 1991 agreed order did not

amend Mr. Bohlen’s contractual obligation. Given the clear language of the MDA,

it is the opinion of this court that the trial court correctly determined the issues

relating to Mr. Bohlen’s statutory and contractual support 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-00081, 1994 Tenn. App. LEXIS 433 (Tenn. App. 8 Aug. 1994), to

support her claim that the expenses include room and board. The facts of Acosta are

distinguishable from the instant case. The obligor in Acosta had not entered into a

contractual agreement to pay post-majority support or education expenses. Instead,

the court ordered the obligor to pay a portion of his statutory child support into an

educational fund. The court then restated the trial court’s list of those items to be

paid out of the fund which included room and board. In this case, Mr. Duggan agreed

in two separate paragraphs to pay both post-majority support and education expenses.

After reading these two paragraphs together, we must conclude the phrase “expenses

of post high school education” does not include room and board. Any other reading

would be redundant.

Therefore, it follows that the decision of the trial court is affirmed in part and

reversed in part. The case is remanded to the court for any further necessary

proceedings. Costs on appeal are taxed equally to petitioner/appellant, Mary Jane
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Bohlen Duggan, and respondent/appellee, Frederick Louis Bohlen, III.

_______________________________

SAMUEL L. LEWIS, JUDGE

CONCUR:

_______________________________

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

_______________________________

WILLIAM C. KOCH, JR., J.