# FILED January 7, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT JACKSON

_______________________________________________________ ) SARAH MAY (CHILDER S) ) McNairy County General Sessions Court (HARRISON) ANDER

SON , ) No. 1955

) Plaintiff/Appella

nt. ) ) VS. ) C.A. No. 02A01-9805-GS-00132 ) WILLIAM TRAVIS HARRISON, SR. , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the General Sessions Court of McNairy County at Selmer. Honorable Bob G. Gray, Judge

Chadwick G. Hunt , Savannah, Tennessee Attorney fo

r Plaintiff/Appell

ant.
Dennis W. Plunk , Savannah, Tennessee Attorney for Defendant/Appellee.

OPINION FIL

ED: MODIFIED IN PA

RT, AFFIRMED I

N PART, REVERSED IN PART AND REMAN

DED FARMER, J. CRAWFORD, P.

J.,W.S. : (Concurs) HIGHERS, J. : (Concurs)Plaintiff Sarah Ma y Anderson appeals the trial court’s order enforcing the final divorce decree which was previously entered by the court in December 1981. Th e trial court enforced the decree’s provision relative to the division of the parties’ former marital home by requiring Defendant/Appellee William Travis Harri son, Sr., to pay to the Plaintiff the sum of $12,084.36 for her interes tin the property. The trial court enforced the decre e’s provision requiring the Defendant to pay a reasonable amount of child support to

the Plaintiff by ordering the Defendant to pay to the Plaintiff the

sum of $2250 for nine months of child support; however, the court ruled that all other cl aims f

or child support we

re barred by

the ten-ye

ar statute of limita

tions applicable to actions on judgmen ts and decrees. Based on our con

clusion that both of

these rulings we

re in error, we modify

in part, affirm in

part, and rever

se in part the tria

l court’s judgme

nt.

I. Factual and Proced

ural History

The final div or ce decree entered in December 1981 incorporated by reference the provisions of the parties’ November 1981 Property Se ttlement Agree

ment (PSA). The PSA contained the following provision relative to the disposition of the marital home:

The parties own a

house situated upo

n a twenty (

20) acre tract

, which is titled in the Husband’s name. The parties agree that the Husbandshall have and receive said tract, and all rights, title and interest which the Wife might

have in same will be divested from her andvested in

the Husband. Said house and twenty (20) acres secures an obligation to

the Selmer

Bank & Trust Company, and the parties agree that the Husband will assume said indeb tedness and save and hold harmless the Wife therefrom . Ho wever, should the Husband ever sell all or any part of

the twenty (20) acre tract and house, he agrees tha t a ny funds derived therefrom, after pay ment of the af oresaid mortgage, and any expenses of closing, shall be divi de d equally between the parties hereto.

The parties agreed t

hat the P laintiff would hav e custody of

the parties’ two s

ons, William Harrison, born September 6, 1966, and Wallace Harrison, born July 13, 1970. As for the Defendant’s obligation to pay child support, the PSA provided that he was “not being required to pay a sum certain.” In executing the PSA, however, the parties acknowledged that

“either party

could return to Court to have a sum certai n a mount established a t any time eit

her party s

hould become dissatisfied with this arrang ement.” In a

ddition to these pro

visions, the final d

ivorc e decreecontained the following provision relative to the Defendant’s child support obligation:
[A]nd it further appears to the Court that the Defendant is an abl e bodied man and fully capable of pay ing child support and

under the present circumstances,

he s hou ld p ay a reasonable amount of support directly to the Plai nt iff, ALL OF WHICH I S SO ORDERED, ADJUDGED AND DECREED.

In October

1997, the Plaintiff filed a petition for injunc

tive and other re

lief against the Defendant. As amended, the Plaintiff’s petition alleged that the Defendant planned to sell the former marital h ome wit hou t pa ying t o th e Pl ain tif f her law ful sha re of the equ ity i n th e pro pert y. The petition sought an injunction against the Defendant’s proposed sale of the propert y or, in the alternative, a judgment for the Plaintiff’s lawful share of the equ

ity in the property. The Plaintiff’s petition additionally

alleged that the

Defendant had p

aid virtually

no child support since the divorce, andthe petition sought a judgment for “a re asonable amount in child support arrearage” for the period from 1981 to 1989.

The Defendant responded by filing a peti tion to enf orce t he fin al div orce d ecree. In his petition, the De fendant a lleged that he planned to sell the subject property to his brother for a price of $70,000. The Defendant acknowledged that, at the time of the parties’ divorce, the balance
on the mor tgage at Selme r Bank & Trust Co

mpany was $2

7,284.01. The Def

endant indicate

d , however, that in the years following the divorce, he had increased

this indebtedness to $45,831.29 by signing fifteen

sep arat e, ad dit ion al n ote s on the pro pert y. These notes allegedly represented the cost of improvements to the house and land made by the Defendant. The Defendant contended that it would be inequitable and unconscionable for the Plaintiff to receive one-half of the proceeds from the sale of the prope

rty without c

ontributing equa

lly to the pay

ment of the addition

al indebtedness to Selm er Bank & Trust Company. Consequently , the Defendant argued that the Plaintiff’s share of the n et equity in the property should be limited to $12,084.35 (($70,000 - $45,83 1.29 = $24,168.71) ÷ 2 = $12,084.35), and he asked the trial court to enforce the final divorce decree by awarding this sum to the Plaintiff.

The trial court agr

eed with the interpretation of the PSA urged by the Defendant and entered a judgment enforcing the decr ee according

ly. On appea

l, the Plaintiff con

tends that thisruling was in error. Additiona lly, the Plain

tiff contends tha

t the trial court e

rred in ruling th

at most of the Plaintiff’s claim for child support was barred by the ten-ye

ar statute of limita

tions applicable to actions on judgments and decrees. See T.C.A. § 28-3-110(2) (1980).

II. Dis positio n of Equi ty in For mer Mari tal Home

As an initial matter, we must respectf ully disagree with the trial court’s interpretation of the applicable pr

ovision of the PSA re

lative to the disposition of the former marital home. In the event the Defendant e

ver sold the prope

rty, this provision entitled t

he Plaintiff to rec

eive one-half of “any funds

derived” from th

e sale after payment

of “the aforesaid mortgage.” We conclude that the term “aforesaid mortgage” could refe r on ly to the mortgage which existed at the time of the parties’ divorce and not to any subsequent obligations incurred by the Defendant. See Clar k v. Clark , 620 S.W.2d 536, 538 (T enn. App. 1981) (h

olding that divorc

e decree making

marital home subject to “any encu

mbrances” would

subject property

only to encu

mbrances that exist

ed as of date of decree and, thus, deed of trust executed by husband alone did not affec t wife’s int erest in property). In our view, it

is immaterial that the Defendant’s subsequently-incurred obligations may have been made to the same lendin g institution as the mortgage which existed at the time of the divorce.
On appeal, the Defendant insists that it would be inequitable to permit the Plaintiff to share in any

increased value

of the property

without sharing in

the additional inde

btedness associated

with the property

. We disag ree. Like oth

er contracts, pr

operty sett

lement agreem

ents must be interpreted

and enforced

according to their plain terms. See Bruce v. Bruce , 801 S.W.2d 102, 105 (Tenn. App. 19

90); see also Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc. , 521 S.W.2d 578, 580 (Tenn. 1975); accord Hardeman County Bank v. Stallings , 917 S.W.2d 695, 699 (Tenn. App. 1995). As ac knowle dged in the Defendant’s brief, the PSA did not “freeze” or define the Plaintiff’s equitable interest in the property as of the time of the pa

rties’ divorce. Instead, the PSA entitled the Plaintiff to one-half of “any funds derived” from the sale of the property, after the payment of c

ertain obligatio

ns, regardles s of when the sale occurred. I

n defining these obligations,

the PSA ref erred to a sp ecific mort ga ge which was in existence at the time of the divo rce. As we previously explained, the existing mortgage could not have included the later-1 As pertinent, section 28-3-110(2) provides that actions on judgments and decrees of

courts of record of this or any other state “shall be commenced w ithin ten (10) years after the cause of action accrued.” T.C.A. § 28-3-110(2) (1980). incurred obligations of the Defendant. See Clark , 620 S.W.2d at 538.

Moreover, after reading

the transcript of

th e ev idence presented below, we are not convinced

that the $70,000 sale price is substantially higher than the value of the property a t the time of the divorce. The Defendant testifi ed that, in his opinion, the property was worth only about $30,000 to $32,000 at

the time of the divorce. The Defendant a dmitted, however

, that at the time of the divorce, a real estate agent listed the property for sale at a price of $64,5 00. Althoug h the Defendant

also testified that nobody purchased the property a

t the listed price,

his admission that the parties listed the property f or a price of $64,500 greatly undermines his tes

timony that the

property was worth only $30,000.

In her petition for relief, the P laintiff allege

d that the mortga

ge referenc

ed in the PSA hadbeen paid in full.

At the hearing b

elow, however, t

he Plaintiff faile

d to prove that t he mortgage had been paid in full. Instead, the Plaintiff merely was able to show tha t the amou nt of th e indebtedness

had increased by $18,547.27. We agree with the Plaintiff’s conte

ntion that she should notbe charged with th

is additional indebtedness. Accordingly, we modify the trial court’s judgment to require the Defendant to pay $21,358 to the Plaintiff for her share o f the equity

in the former marital home (($70,000 - $27,284.01 = $42,715.99) ÷ 2 = $21,358).
III. Child Support Arrearages

We also agree

with the Plaintiff’ s contention that th e trial court err

ed in denying a

ll butnine months of her claim for child support arrearages. Previous decisions of this court suggested that the ten-year statute of limitations for enforcing judgme nts and decrees 1 did not apply to the enforcement of child support orders. See Basham v. Basham , No. 01A01-9402-GS-00047, 1994 WL 388281, at **2-3 (Tenn. A pp. July 27, 1994); Sandidge v. Brown , No. 03A01-9104-CV-00142, 1991 WL 167149, at **2-3 (Tenn. App. Sept. 3, 1991); Pera v. Peterson , 1990 WL 200582, at *2 (Tenn. App. Dec. 14, 1990 ); State ex rel. Woody

v. Morris , 1990 WL 2867, at *2 (Tenn. App.Jan. 19, 1990). The court recog nized an exception to this rule, howeve

r, in cases wher

e the child support arrearages had been reduced to judgment. I n those c ases, t he court required the custodial parent to bring the action for

enforcement within ten years of obtaining the judgment for

arrearage s. See Vaughn v. Vaughn , 1988 WL 68062, at *4 (Tenn. App. July 1, 198 8); see a lso Thomas v. Thomas , 1988 WL 55722, at *1 (Tenn. App. June 2, 1988).

Recent decisions by this court have demonstrated a growing acc eptance of the premise that the ten-year statute of limitations applies t

o child support orders just as it applies to any other judgment or decree. See In re Estate of Mea d er , No. 03A0 1-9707-CH -00252, 19

97 WL 672205, at *2 (Tenn. App. Oct. 30, 1997) ; Gafford v. Gaff ord , No. 01A01-9404-CV-00178, 1994 WL 687077, at **3-4 (Tenn. App. Dec. 9, 1994); Rodakis v. Byrd , No. 03A01-9206-GS-00202, 1992 WL 301312, at *4 (Tenn. App. Oct. 23, 1992). One such cas e held th at the statute of limitations began to run on the date the last child support payment was due and payable under the express terms of the judgment or, if no such date was established , on the date the obligor’s legal obligation to support the child ended. Rodakis , 1992 WL 301312, at *3. In contrast, another decision held that the statut e of limitations began to run as to each child supp ort payment

on the date that payment was due. Gafford, 1994 WL 687077, at *4; see also R ob erts v. Roberts , 1990 WL 130816, at *1 (Tenn. App. Sept. 12, 1990), perm. app. denied (Tenn. Jan. 14, 1991). This latter rule appears to be the one applie d by the tria

l court in the pres

ent case becau

se the court r

uled th at the Plaintiff could not recover any child support pay ments due more than ten years prior to when she filed her petition in October 1997. The trial court awarded the Plaintiff child

support only for the ni ne-month

period from November 1987 to July 1988, when the parties’ young er son reach ed th e age of eighteen.

The foreg oin g cas es i ndi cat e th at, ove r th e pas t te n year s, s ome unc ert ain ty h a s existed as to (1) whether the ten-year statute of limitations applies to actions to enforce child support orders and, (2) if so, when the statute begins to run. We need not resolve this uncertainty, however, because the legislature has resolved it for us. Effective July 1, 1997, prior to the filing of Plaintiff’s petition, the legislature enacted the following statutory provision:

Judgmentsfor child support payments for each

child subject2 As pertinent, sec tion 36-5-101(a) (5) provides that any judgme

nt for child suppor

t “shall not be subject to modification as to any time period or any amounts due pr ior to the date that an action for modification is filed.” T.C.A. § 36-5-101(a)(5) (1996 & Supp. 1997). In Rutledge v. Barrett , 802 S.W.2d 604, 606-07 (Tenn. 1991), our supreme court held that this statute bars the retroactive mod

ification of child

support orders. to the order for child support pursuant to this part shallbe enforceabl

e without limitation as to time.

T.C.A. § 36-5-103(g) (Supp. 1997) (a mended by

1997 Tenn. Pub. Act

s 551). In shor

t, this amendment

effectively has resolved any uncertainty as

to the applicabilit

y of the ten-

year statu te of limitations by providing that child support orders shall be enforceable without limitation as to time.

In light of the foregoing amendment, we conclude that the trial court erred in ruling that the ten-year statute of

limitations barred

most of the Plaintiff

’s claim for child support arrearages in this case. Accordingly, we remand this case for the trial cour t to determine the additional amount of child support arrearages due for the period from December 1981, when the final divorce decree
was entered, until October 1987. In remanding this matter, we note that neither party has challenged the trial court’s implicit determination that $250 per month constituted a rea

sonable amount of c

hild support to be paid by the Defendant ($2250 ÷ 9 months = $25 0). We also note that, by his own admission, the Defendant has paid a total of only $245 in child support since the parties’ divorce.

In affirming the

trial court’s award of child support in the amount of $2250 for the nine-month

period from November 1987 to July 1988, and in remanding this case for the calculation of the additional ar

rearages o

wed, we reject the De

fendant’s arg

ument that any

award of child support in this case constituted a retroactive modification which was prohibited by statute. See Rutledge v. Barrett , 802 S.W.2d 604, 606-07 (Tenn. 1991); T.C.A. § 36-5-101(a)(5) (1996 & Supp. 1997). 2 Although this precise issue apparently has not been addressed by the courts of

this state, this argument was considered and rejected by the Colorado Court of Appeals in a similar ca se. In In re Marriage of Meisner , 807 P.2d 1205, 1207 (Colo. Ct. App. 1990), the parties’ separation agreement didnot require the father to pay a sum certain as c hild support but inste

ad merely r

equired both partie s to “cont ribute whatever may be necessary . . . for the support of their children.” Six years after the parties’ divorce, the mother filed a motion to enforce the decree, alleging that the fathe r had contributedless than $3,000 toward the children’s support since the divorce. Meisner , 807 P.2d at1207. The father responded by moving to dismiss the moth er’s e nforc ement actio n. In support of his motion to dismiss, the father contended that the settlement agreement was unenforceable for lack of a specific support figure and, further, that an award of arre arages would constitute a retroactive modification of the su

ppo rt order contrary to statute. Id . (citing Colo. Rev. Stat. § 14-10-122(1) (Supp. 1990)).
In rejecting the father’s contentions, the court explained:

T he separation agreement at issue here states in c lear an d unequivocal language that the partieswill each contribute “whatever may be necessary . . . for the support of their c hildren.” T he foregoinglanguage constitutes a binding promise on th e part of the father to contribute to his children’s financial support. See In re Marriage of Robinson , [629 P.2d 1069 (Co lo. 1981)]; In re Marriage of Norton , [757 P.2d 1127 (Colo. A pp. 1988)]; In re Marriage of Lamm , 682 P.2d 67 (Colo. App. 1984). T he only uncertainty

is the amount of support owed by the father and

whether the omission of a definite support obl igation renders the support agreement une

nforceable. We c

onclude that it doe

s not. A decree should be

construed so as to r

ender it lawful, operative, and effective. See Thompson v. Crocker , 18 Colo. 328, 32 P. 831 (1893). If a provision essential to the validity of the decree has been omitted, the oblig

ation will be i mplied and enforced even thou gh not specifically set forth. See Orr v. Arapahoe Wate r & Sanitation District , 753 P.2d 1217 (Colo. 1988). Likewise, enforcement of this obligation does not constitute retroactivemodificati on of the decree. The original decree established a

duty on beha

lf of both parties to provide the necessary financial support for their children. A determination by the trial court of a r easonably necessary

amount is an interpretation of a valid , existing decre e. See In re Marriage of Saiz, 634 P.2d 1020 (Colo. App. 1981). Both parties should hono

r and fulfill all ob

li gati ons made betweenthem and ordered by the court. . . . To allo w otherwise would permit father un i laterally to terminate his child support obligation, withouthimself obtaining an order of modification. See Abrams v. Connolly , 781 P.2d 651 (Colo. 1989).

Meisner , 807 P.2d at 1208.

We similarly co

nclude that enfor

cement of th

e final divorce decree does not constitute
a retroactive modification of the Defendant’s child support obligation in the present case. The final decreerequired the De

fendant to

“pay a reasonable amount” of child support to the Plaintiff. Thetrial court’s determination of what constitutes a “reasonable amount” does not modify the final

decreebut, instead, mere

ly interprets and enforces this provision of the decree. See Meisner , 807 P.2d at 1208; see also Moscheo v. Moscheo , 838 S.W.2d 226, 227-28 (Tenn. App. 1992) (affirming trial court’s finding that $6000 constituted reasonable amount of tuition to be paid by father where marital dissolution agre

ement required f

ather to pay

“reasonable c

ollege tu ition” on b ehalf of partie

s’ child); Bu rkeen v. Burkeen , No. 02A01-9109-GS-00194, 1992 WL 85800, at **3-4 (Tenn. App. Apr. 29, 1992) (reversing and remanding fo rtrial court to determine amount of child support arrearage due plaintiff because, although final decree was inartfully drawn in that it required defendant to p ay on ly “ reasonable sum out of his future earnings,” this language did not relieve defendant of his legal obligation to pay child support).

IV. Conclusion

The trial court’s judg

ment is hereby modified to require the Defendant to pay to the Plaintiff the sum of $21,358 for her interest in thesubject real property. The trial court’s award of child support in

the amount of $2250

for a period of ni

ne months is affirm

ed; however, we

reverse that portion of the ju

dg ment denying the Plaintiff’s request for additional child support, and we remandthis cause for the

trial court to

determine the additional amount of child support arrearages due for the period fr

om December 1981 until October 1987 . Costs o f this appeal are taxed to the Defe nda nt, for whi ch ex ecut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIGHERS, J. (Conc

urs)