1 In Penns ylvani a, t he obli gati on of

a pare nt to s upport a

chil d general ly ce ases upon the c hil d reachi ng the age of m ajority or w hen the ch ild gra dua tes from high scho ol, w hich eve r occ urs late r. Hanson v. Hans on , 625 A.2d 1212, 1214 ( Pa. Supe r. Ct . 1993). The only e xcepti on to t his rule , re fere nced i n 23 P A

. C ONS

. S TAT

. A NN
. § 4321(3) (2001), con cern s pare nts of adu lts with p hys ical or m ental im pairm ent. Hanson , 625 A.2 d at 1 214

. Accordingly, when the father agreed to pay t he ent ire obli gati on aft er the fi rst two daught ers reache d the a ge of major it y and gradua ted hi gh scho ol, he wa s agre eing to incu r ob ligation s abo ve th e req uisite am oun t.



### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON JANUARY 23, 20 02 Session
ISHMAEL H. MACE v. PHYLLIS C. MACE An Appeal from the Circuit Court for Shelby County No. 130557 R.D.; The Honorable Karen Williams, Judge

No. W2001-00574-COA-R3-CV - Filed April 15, 2002

A LAN E. H IGHERS , J.
DISSENTING OP INION I respectfully

dissent from the conclusion reached by the majority. Important to this case

is the fact that the f

ather a nd mother

entere d into a “Family

Settlement Agreement,” a fact that the majority appears to give

only cursory

attention. The Family Settlement Agreement

amounts to what we would consider a marital dissolution agreement in Ten nes see . In this agreement, the father c onsentedto pay ing $1,2 00.00 per

month in ch

ild suppor t with no prorated reduction in this amount

as each child reached the age of

majority. This continuing obligat ion would not cease until the young est child graduated from high school.
The father’s decision to consent to pay ing the entire obligation amount after the two eldest daughters reached majority and graduated from high sc hool we nt beyond his ge

neral obligations under Pennsylvania law. 1 The f ather, however, takes no issue with the Pennsy lvania decree and proposes to pay all ar

rearage acc

umulated under that decree.
Under Tennessee law, we would ob viously enforce an agreement wh erein a parent v oluntaril

y agreed to pay more than would be required under law for the support of his children. See Penland2 The majori ty s tre sses the f act that the f ather did not all ege that t

he $1,500.00 was above the child suppo rt guideli nes amou nt fo r one chi ld. Com mon sense dictates, howe ver, that when the court increased the father’s obligation s, the inc rease wa s m ade to brin g his o bliga tions in line w ith the guideline amo unt for all three o f the parties’ chil dren. We find no reason to bel ieve that with all three chi ldren under the age of eighte en at the time, the co urt w ould have i ncreas ed the amount of hi s obl igations to a l evel commensurate with t he amount due for

only one c hil d. From my rev iew of the record, it appears painf ull y obvious that

the c ourt mer ely r ewrote the c ontra ctual obli gati ons of

the fathe r. -2- v. Pen land , 521 S.W. 2d 222 (Tenn . 1975 ). The enforc ement of the award, howev er, fol lowi ng a petitioned increase in the obligation, would require furthe r review. In Penland , our supreme court noted the di fference be tween agreed child support pay ments outlined in a marital dissolution agreement that fulfille d a pare

nt’s leg al duties a

nd those pa

yme nts that went above and beyond what would be considered manda t ory. Id. at 224-25. Those agreed upon pay ments that fulfill a parent’s leg al obligation merge into the final divorce decree. Those pay ments above the legal mandate s, howeve

r, contin ue to retain a contractual nature even thoug h “incorporated” into the final divorce decree. Id. at 225.
In the case sub judice , the majority holds that all pay ments agreed

upon by the part ies should be considered mer gedwith the Pennsylvania decr ee. Under Tennessee law, howe ver, as stated above, we treat the portions of an agree ment that require a parent to make pay ments in excess of the legal requirements to be of a contractual nature . Thus, I would hold

that the p ortion of

the pay ments that the father agreed to pay

after the eldest daughters became adults and graduated from high school are mere contractual

obligations and not modifiable parts of the decree. The major ity, however , in requi ring the father to con tinue pay ing the e ntire ad ditional $3 00.00 af

ter the e ldest d aughter s reached the ag e of majo

rity , in effect, imper

missibly rewrote the father’s co ntractu al oblig ations. 2
I would also hold that the agreement entered into between the parties should be enforced as written. It is w

hat the f ather vo luntarily

agreed to pay. Howe

ver, the father did not

agree to pay

an additional $300.00 pe

r month af

ter the f irst and second daughter reac hed the age of majority . That amount was assessed to him by the state of Tennessee and, accordingly, that amount should be subject to reduction as each of the daughters becomes an adult. I also note that under the re asoning of the majority opinion, the fa ther would ha ve been entitled to no pro rata reduction even if the Tennesseecourt had doubled or tripled the amount of the original awa rd. This result does not appear to me to be either fair or logical.
I would gr

ant the f ather a pro rata reducti on in the $300 .00 modifi cation a s each child attainedmajority. The Pennsy lvania court

entered a decree

which allowed no reduction in the sum of $1,200.00 per month. I would enforc e that decree.

___________________________________ ALAN E. HIGHERS, JUDGE