1 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE January 8, 2003 Sessi on
JANET RYAN HILMAN V. RANDOLPH HILMAN Appeal from the Circuit Court for Davidson County No. 86D-2102 Muriel Robinson, Judge No. M2002-00898-COA-R3-CV - Filed July 31, 2003

This ap peal arises from the trial court’s denial of a c ontempt petition brought to e nforc e the provision in a marital dissolution agreement regar d ing the father’s obligation to pay one-half of child’ s uncove

red medi cal expen ses. The trial c our t found the petitioning mother fa i led to present sufficient evidence of which expenses we re medical and covered by the marit

al dissolut

ion agr eeme nt an d the petitioning m other acted unila

terally in incurring these extraordinary charges for treatment of the minor child. We affi rm the t rial court. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d. D ON R. ASH, SJ, delivered the opinion of the court, in which B EN H. C ANT RELL , PJ, MS, and P ATRIC IA J. C OTT RELL , J, joined. James Harris, II

I, Nashville, Tennessee, f or the appellant, Janet Ryan Hilman. Matthew F. May o, Nashville, Tennessee, for the appellee, Randolph Hilman. OPINION Background Ms. JanetRy an and Randolph Hilman divorced January 16, 1987 on the grounds of i rreconci lable differences. The final divorce decree incorporated the par ties’ marital dissolution agr ee ment [“MDA”] granting Ms. Ry an custody of their minor son. Mr. Hilman agreed to pay

child support as well as “one-half (1/2) of any an d all uncovere d

m e dical expenses including hospital, doctor, dental, psy chological or psychiatric, orthodontic and optometry expenses.”2 At the time of their divorce, the Hilman’s son was two y ears ol d. At age seven, he was diagnosed as suffering fro m Attention Deficit Hyper activity Disorder. Othe

r behavioral disorders were later discovered. Ove r a period of y ears, the son’s treatment required him to see psychologists, psychiatrists, and other doctors as w ell as taking several medica t ions. Afte r the divo

rce, Mr . Hilman di d little to r emain inv olved in hi s son’s life or decisions regarding medical treatment for the y oung man. Sa dl y, the beha

vioral problems c ontinued and the son’s psychia trists and doctors searched for alte rnative treatments to expensive inpatient hospitalization. The mental health professionals recommended a therapeut i c wilderness program called Second Nature in Utah. The son attend ed this wi lderness program throughout the summer of 1998. Ms. Hilman

applied f or pay ment by her in su rance carrier for this prog ram, but she

was denied. Reg ardless, the son went to Utah and stayed in the program. L ater, the son participated

in two other i nte nsive therapeutic residence prog rams, Positive Impact and Three Springs. Second Na ture, Positive I

mpact and T hree Springs cost several thousand dollars each and co verag e was d enied by the insur ance ca rrier f or these progra ms. Ms. Ryan never consulted Mr. Hilman pr ior to thei r son atte nding the se thera

peutic pr ograms butdid send r

egular medical b ills and sta

tements listing ch arges incurred at the var ious progra ms to him. Ms. Ryan is claiming uncovered medical care totaling $4 7,437.40 of which Mr. Hilman would owe half or $23,718.70. I n Decemb er 1999, Mr. Hilma n questioned the ch argesfor the th erapeuti c progra ms and refused to pay

his portion. O n November 14, 2001, Ms. Ryan filed a petition for cont

empt ag ainst Mr. H

ilman for failure to pay one-half of the un covered3

medical ex penses. The contempt petition was heard March 14, 2002. The c our t dismissed the petition. Ms. Ry an raise d two issue s in her a ppeal: 1. W hether

the t rial court erred by

finding Mr. Hilman not liable under the MDA for expenses unilaterally inc urred by Ms. Ry

an. 2. Whether

the court erred by

requiring Ms. Rya

n to present specific evidence regarding e xact char

ges for medical t

reatmen t at the the

rapeuti c psychiatric programs. Discussion We review t

he lower court’sfactua

l dete rmin ations de novo with a presumption of correctness and will not reverse those finding s of factunless they are

contrary to the preponderance

of the ev id ence. Randolph v. Randolph , 937 S.W.2d 817, 819 (Tenn. 1996); Tenn. R. App. P. 13(d). Regarding the lower c ourt’s legal conclusions, our review is de novo wi th n o presumption of correctness. S. Construc tors, Inc . v. Loudon County Bd. of Educ. , 58 S.W.3d 706, 710 (Tenn. 2001); Tenn. R. App. P. 13(d).

I. Was Mr. Hilman liable under the Marital Dissolution Agreement for

expenses unilaterally incurred by Ms. Ryan First, we view thi s issue as on e of contract interpretation. A husband and wife divorcing on grounds of irreconcilable differ ences must enter into a marital dissolution a gr eement

deciding a variety

of issues including property division, parenting responsi bilities, spousal support and child support. A divorce d e cree is to be construed like other written instruments. Branch v. Branch, 249 S.W.2d 581 (Tenn. Ct. App.1952). A d ecree must be constructed in light of the pleading s, particularly the pr ayer of the bil l and the apparent purposes in the mouth of the draftsman and the co urt. Livingston v. Livingston , 429 SW2d 452, 456 (Tenn. Ct. App. 1967) Ms. Ryan arg

ues the cour t erred by

requiring her to seek approval fr om Mr. Hilman or the court befo re enfo rcing t he MDA as incorpo rated into the final divorce decree. Esse ntiall y, M s. Ry an dispute s the cour t’s finding she a

cted unil aterall

y in incurring these expe

nses witho

ut consult

ing either Mr . Hilman or the court. In ruling from the bench, the lower court stated1 The court clearly expressed it s finding in thi s regard stati ng, “[t] he problem is this chi ld has got a seri ous mental ill ness. There’s n o doubt about i t. The probl em is i t wasn ’t di agnosed at the time tha t th ese part ies were divor ced...there must ha ve been a need f or it at that t ime.” 4 [T]here was no joint decision on Three Springs. Ms. Ryan cannot unilaterally contra

ct to a progr am of this magnitude withoutthe c onsent of

the other

party , especi ally

when it costs $4,200 a month, unilaterally, a nd then claim plane ti ckets, c ounselors fees, and things of that nature, which he has objected to, whicht his court feels he is justified in. You can not do that and add it up and expect him to pay one half, under the proof t hat she brings before the court. She made that decision by herse lf. If she had come into cour t ther e is away to do that, to show this child has an extra ordinary expense here, and that y ou need a contribution. You can’t just go and sign up and spend this money and t hen by t he way, a

t a later time, send somebody a bill for $18,000. Y ou canno t do that. The cardinal rule for contract interpre tation is to ascertain the pa rties ’ intentions from the contract as a whole and to give ef fect to that intention consistent with legal principa ls. Rainey v. Stansell , 836 S.W.2d 117, 118 (Tenn. Ct. App. 1992). In co nstruing contracts, the words expressing the parties’ intentions should be given their usual, n atur al and ordinary mea

ning. Taylor v. White Stores, Inc. , 707 S.W.2d 514, 516 (Tenn. Ct. App. 1985). To arri ve at that intent, it is appropriate to consider the circumstances of the parties at the time the contrac t was f ormed. Hamblen C

ounty v. C

ity of Morr

istown , 656 S.W.2d 331 (Ten

n. 1983). When the H

ilman’s e ntered into the MDA , their so n was onl y two years ol d. He had not ye t displayed sy

mptoms of his severe psycholog ical problems

. 1 Their son was first diagnosed as ADHD whe n he was seven. Nei ther party disputes the i r lack of contemplation of their son’s development of severe behavioral and emotional problems. It is also well established in this jurisdiction an enforceable contract must, among other eleme nts, resul t from a meet ing of the minds and must be sufficiently def inite to be5

enforced. Johnson v. Central National Ins. Co. of Omaha, Neb. , 356 S.W.2d 277, 281 (Tenn. 1961). The contemplated mutual assent and meeting of the minds ca nnot be accomplishedby the unilateral a ction of one party

. Batson v. Pleasant V iew U tili ty District , 592 S.W.2d 578, 582 (Te n n. Ct. App. 1979); Balderac chi v. Ru th , 256 S.W.2d 390, (Tenn. Ct . App. 1953). At the time these parties entered into the MDA, there wa s no meeting of the minds in regard to such extraordinar y expenses. Ms. Rya n’s argument the MDA granted her the authority to unilater ally bind Mr. Hilman fails because under Te nnes see law, every contract contains an implied duty of good faith and fair dealing in the perfor mance and enforc ement of the contract. See Wal lace v. N

ational Bank of Commerce of Chattanooga, Inc. , 938 S.W.2d 684, 686 (Tenn. 1996); Winfree v. Educators Credit Union , 900 S.W.2d 285, 289 (Tenn. Ct. App. 1995). In Woods v. Woods, 2000 Tenn. App. LEXI S 584, Jud ge David Farmer writing for the Western Section of the Court of Appeals stated: [W] hen consid

ering w hether t he parti es have c omplied with this duty of good faith an d fair de aling, t

he court must asce

rtain the intention of the parties as determined by a reasonable and fair co nstructio n of the la nguag e of the c ontract . We view Ms. Ryan’s actions regarding these expenses in breac h of h er implied duty of good f

aith and fair dealing. Sh e did not hav e the rig ht to unilat

erally bind Mr. H

ilman unde

r well- settle d contract law principals. If they

could not come to an agreement, Ms. Hilm an should have sought the court’s instruction on resolving the disagree ment. Regardless of Mr. Hilman’s lack of involvement in his son’s life, he deserv ed notice and the opportunity f or input or court involvement in these unanticipa ted t reatment decisions if he was obligated to pay6

half of the co st. When the se costs a rose, Ms. Rya

n should ha

ve discus sed the va

rio u s recommended treatment options with Mr. Hilman. She interpreted the MDA as granting her plenary

authority to decide ho w to car e for her son. Understandably , Ms. Ryan sought the best healthcare for her troubled son. Her judgmen t reflects a

c aring parent who wants the best car e available, regardless of the

co st . T he MD A d oe s n ot gr an t h er su ch un br id le d a ut ho ri ty.

II.Was Ms. Ryan required to present specific evidence regarding exact

charges for medical treatm ent. Fi na ll y, Ms. Ryan ar gues the lower court misinterpreted the MDA. The lower court narrowly inter

preted “medical expenses” in the MDA to mean treatment ses si ons by a psychiatrist or psy

chologist. Ms. Ryan ar

gues this interpretation was the co urt’s sua sponte substitution of “its own medi cal judgmen t for that of the phy sicians, psy chiatris ts, and psy chologists.” Mr. Hilman argues the thera peutic programs were “e

xtraordinary” i n nature and not medical expenses as contemplated in t he parties MDA. Based upon testimony presented at tria l, we do not disagree with the lower court’s de termination. Ms. Ryan also arg

ues the disputed the ra py prog rams were covered medical expenses because

they were “ prescr ibed and/ or reco mm en ded” by

doctors, psy chiatris ts and psychologists. While the record is not entirely clear , there is ample proof the alternat ive programs at issue were prese nted to Ms. Ryan as one of va rious treatment opt ions. Impor

tantly , none ap

pears to have be en speci fically

ordere d by

any of their

s on’s treating phy sicians. Dr. Bermudas said in his deposition he did not “prescribe” an y specific pr ogram “in the traditional sense of the word.” He recommended a “mental health interve ntion” asan alter

nativ e to a numb er of potential treatment options. Dr. Bermudas said regarding differ entiation between “prescribi n g” and “r ecomm endin g”7

treatment options, he envisioned his role as one of guiding the patient throug h the decision making proc ess rather than ordering a spec ific program or a specific tre atment plan. This point is i mpor tant because Ms. Rya n broadly interpre

ted the scope of what expenses were covered by the term “medi cal expen ses” in the MDA. Ms. Ryan include d airfareto the treatment programs and the charges of an “educational cons ultant” who selected the pr ogr ams. Additiona lly, she inclu ded the e

ntire co st of the th

erapeu tic program itsel f whether part of th

e prog ram was education al in natu re or str ictly therapeutic. The record is clear Ms. Ry an merely ta llied up the tot al expenses due and divided them by two. We vi ew Ms. Ryan’s interpre tation of the MDA is untenable and affirm the lower court. Conclusion For the reasons set out above, the order den ying Appe llant’s Petition for Contempt is AFFIRMED. Costs of the appeal ar e assessed to Appellant.

______________________________ DON R. ASH, S P . J.