1

FILED

June 30, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

TAMMY BORING WILSON, ) C/A NO. 03A01-9610-CH-00322

 )

Plaintiff-Appellee, )

 )

 )

 )

 ) APPEAL AS OF RIGHT FROM THE

v. ) BLOUNT COUNTY CIRCUIT COURT

 )

 )

 )

 )

TERRY LEE WILSON, )

 ) HONORABLE W. DALE YOUNG,

Defendant-Appellant. ) JUDGE

For Appellant For Appellee

MARTHA MEARES R. D. HASH

Maryville, Tennessee Maryville, Tennessee

JOYCE, MEREDITH, FLITCROFT

 & NORMAND

Oak Ridge, Tennessee

O P I N I O N

AFFIRMED, AS MODIFIED

REMANDED Susano, J.
1

For ease of reference, the parties’ daughter will be referred to in

this opinion by her first name.

2

This is a post-divorce dispute. The trial court

awarded Tammy Boring McLeod, whose last name was formerly Wilson,

a judgment for $3,386.15 against her former husband, Terry Lee

Wilson, “for the sole and exclusive use and benefit of Misty Dawn

Wilson as reimbursement for college expenses.” The trial court

found this amount to be the college expenses incurred by the

parties’ now-adult daughter, Misty,1 for three semesters of

college. The Court ruled that Ms. McLeod was entitled to a

judgment for this amount pursuant to the following provision of

the parties’ marital dissolution agreement:

That the Husband shall pay the expenses of a

college education for the parties’ minor

children if they desire to further their

education by way of college.

Mr. Wilson appealed, raising six issues. In effect, this appeal

questions the correctness of the award in toto, as well as the

propriety of including certain types of expenses as “expenses of

a college education.” The question for our determination is

whether the evidence preponderates against the trial court’s

judgment. See Rule 13(d), T.R.A.P.

Mr. Wilson argues that he is only liable for Misty’s

college expenses to the extent they exceed funds available to her

from her savings account. This account was set up at Misty’s

birth with a small deposit by her grandfather. The parties

disagree as to how the remaining funds in that account were
3

thereafter accumulated. Mr. Wilson testified that the savings

account was intended to provide at least some of the funds for

Misty’s college education. Ms. McLeod and Misty dispute this.

The trial court correctly held that the savings account

was not material to the issue before us. Mr. Wilson’s obligation

to pay his daughter’s college expenses, as set forth in the

marital dissolution agreement, is not tied, in any way, to the

savings account. We must focus, as the trial court did, on the

parties’ intent, as expressed in their marital dissolution

agreement. See Bob Pearsall Motors, Inc. v. Regal ChryslerPlymouth, Inc., 521 S.W.2d 578, 580 (Tenn. 1975). There is

nothing in the parties’ agreement to suggest that Mr. Wilson’s

obligation was contingent upon the exhaustion of the funds in the

savings account. This issue is without merit.

Mr. Wilson did not dispute the fact that tuition, books

and school supplies were included within the words “expenses of a

college education.” It is clear that the relevant provision in

the marital dissolution agreement contemplates these types of

expenses. The trial court so found, and Mr. Wilson did not

question this finding in his testimony; nor does he argue against

such a finding on this appeal. What he does contest is the trial

court’s finding that his obligation applies to school lunches

totaling $650 and gas for Misty’s car in the amount of $572.00.
2

Mr. Wilson acknowledges that his obligation is contractual in nature,

citing Penland v. Penland, 521 S.W.2d 222, 224-25 (Tenn. 1975).

4

Mr. Wilson contends that his contractual obligation2 is

subject to an implied condition of reasonableness, citing Moore

v. Moore, 603 S.W.2d 736, 739 (Tenn.App. 1980). We agree;

however, as it pertains to Misty’s lunch expense and gas needs,

we do not find it necessary to decide whether these categories of

expenses are reasonable college expenses in this case. This is

because we find that the evidence preponderates against the trial

court’s finding that Mr. Wilson failed to satisfy his obligation

with respect to these expenses, even assuming they are reasonable

college expenses under the marital dissolution agreement.

The record is clear that Misty attended a college--the

Blount County campus of Pellissippi State--that is approximately

five miles from where she lived with her father, Mr. Wilson. Her

classes were over at 1:00 p.m. Food was available to her at

home. There were occasions when she availed herself of the

opportunity to eat lunch at home. Given the fact that lunch was

readily available to her at home, a short distance from

Pellissippi State, we find that the evidence preponderates

against a finding that Mr. Wilson has not satisfied any

obligation he had with respect to her lunch needs.

The trial court calculated Misty’s gas expenses based

on an allowance of 22 cents per mile; but this ignores the fact

that such an allowance includes elements other than gas, e.g.,

depreciation, maintenance, and the like. It is clear in this
5

case that Mr. Wilson furnished Misty a car for the short drive to

and from school. We do not believe it appropriate in this case

to burden him with a per-mile charge. Assuming transportation

was a reasonable college expense in this case, we find that the

evidence preponderates against the trial court’s finding that Mr.

Wilson has not satisfied this obligation. We find that he

furnished Misty’s transportation. There is insufficient evidence

in this case to warrant a finding that Mr. Wilson owes an

additional transportation expense of $572.

The judgment of the trial court is modified by reducing

the amount of the award from $3,386.15 to $2,164.15. Exercising

our discretion, we tax the costs to the appellant. This case is

remanded to the trial court for enforcement of the judgment and

collection of costs assessed below, all pursuant to applicable

law.

__________________________

Charles D. Susano, Jr., J.

CONCUR:

______________________

Herschel P. Franks, J.

______________________

Don T. McMurray, J.