Gary Powers v. Sherry Denise Powers

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
April 16, 2013 Session

GARY POWERS v. SHERRY DENISE POWERS

Direct Appeal from the Chancery Court for Gibson County
No. 14307 George R. Ellis, Chancellor

No. W2012-01763-COA-R3-CV - Filed April 30, 2013

This case involves the construction of the parties’ marital dissolution agreement. Father
appeals the transfer of his case from circuit court to chancery court, the trial court’s dismissal
of his petition for a declaratory judgment, and the trial court’s ruling finding him in breach
of the post-majority support provision of the marital dissolution agreement and awarding
Mother attorney fees. We reverse as to the attorney fee award, but affirm as to the remainder.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Affirmed
in Part; Reversed in Part; and Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS,
P.J.,W.S., and D AVID R. F ARMER, J., joined.

David W. Camp, Jackson, Tennessee, for the appellant, Gary Powers.

Terri Smith Crider, Humboldt, Tennessee, for the appellee, Sherry Denise Powers.

OPINION

I. Background

Appellant Gary Powers (“Father”) and Appellee Sherry Denise Powers (“Mother”)
were married in 1990. The parties had one daughter, Brooke, born in 1993. The parties were
divorced in 1999 pursuant to an agreed marital dissolution agreement (“MDA”) entered in
the Gibson County Chancery Court. Under the MDA, Father agreed to pay one-half of
Brooke’s college expenses, including “tuition, books, living expenses, etc.” The parties’
daughter reached the age of majority in April of 2011 and began to attend college in the fall
of 2011. Father began receiving bills for what Mother deemed college-related expenses
around July of 2011,which was after Brooke attained majority. Father paid a portion of the
bills. Father was never consulted before the bills were incurred; instead, invoices were simply
mailed to him. In the summer of 2011, however, Father was attempting to start a new
business and had no income. Father alleges that he was sent bills that included costs for
health related expenses, a television, and home accents, which he argued were not “living
expenses” pursuant to the MDA.

Based on Father’s belief that he was being required to pay expenses that were not in
accordance with the language of the MDA, Father filed a petition for a declaratory order in
the Gibson County Circuit Court on September 28, 2011. Specifically, Father requested that
the trial court “issue a declaration that the provision related to college related expenses
contained within the marital dissolution agreement is invalid” and that the “college related
expenses language contained within the marital dissolution agreement is invalid as the
parties’ daughter is over the age of eighteen (18) and has graduated from high school.”
Mother answered Father’s petition and filed a counter-complaint for breach of contract on
October 27, 2011. On November 28, 2011, Mother filed a motion to transfer the case to the
Gibson County Chancery Court. A hearing on Mother’s motion was held on January 3, 2012.
The Circuit Court subsequently transferred the case to Chancery Court by order of January
27, 2012.

The case proceeded to trial before the Chancery Court on March 6, 2012. Father
testified as to his precarious financial situation and asked that the trial court clarify what he
was required to pay pursuant to the MDA. Father also testified as to some expenses he had
paid prior to the parties’ daughter graduating from high school, including college visits.
Father’s current wife also attempted to testify as to some expenses that were paid prior to the
parties’ daughter reaching the age of majority, including costs for college entrance exams and
medical expenses. Father’s current wife testified that some of these expenses were paid
voluntarily, after requests from Mother. However, when Father’s wife attempted to elaborate
on other expenses that she asserted were paid (despite not qualifying as college-related
expenses), Mother’s attorney objected to the relevance of such testimony. The trial court
ruled that testimony of expenses voluntarily paid while Brooke was still a minor was not
relevant to the issue presented. When Father requested to make an offer of proof, the trial
court denied the request, noting that both Father and his wife had already testified to some
extent about these expenditures and that the present testimony was from a witness who was
not a party to the contract.

Mother testified, in contrast, that she does not request that Father pay many of
Brooke’s expenses, including car insurance or car payments. Instead, she testified that she
considered the “living expenses” under the contract to include rent, food, and gasoline, as

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well as certain “start-up” costs needed to furnish Brooke’s apartment.1 Mother testified that
she had asked Father and his current wife to pay some of Brooke’s medical expenses, and
that Father’s current wife voluntarily undertook to pay some of those expenses.2 Mother
further testified that although Father paid some of the bills prior to Brooke entering college,
Father had not paid any post-majority support since September 2011. Mother submitted
itemized expense worksheets outlining the costs she had incurred since Brooke reached
majority that had not been paid by Father and asked that she be awarded damages of
$4,128.79.

At the conclusion of trial, the trial court orally ruled that the post-majority support
provision of the MDA was valid and enforceable. Accordingly, the trial court dismissed
Father’s Complaint for a Declaratory Judgment. The trial court also concluded that the
expenses submitted for reimbursement by Mother were reasonable and were required to be
paid by the plain language of the contract. Consequently, the trial court found Father in
breach of the MDA and awarded Mother a judgment for the expenses owed pursuant to the
MDA, totaling $4,128.79. Further, the trial court clarified the term “living expenses” with
regard to the expenses owed pursuant to the MDA, concluding that such term should only
include rent, food, and gasoline. The trial court also ruled that in the future, Mother would
submit “an itemization with attached bills” to Father, and that Father would reimburse
Mother for those expenses within thirty days. The trial court additionally awarded Mother
her attorney fees. On July 23, 2012, the trial court entered an order memorializing its oral
ruling.

Father appeals, raising the following issues:

1. Whether the trial court erred in transferring the matter
from the Circuit Court of Gibson County, Tennessee to
the Chancery Court of Gibson County, Tennessee?
2. Whether the trial court erred in ruling that Father could
not present evidence of prior bills paid under the post-
majority support provision of the contract
3. Whether the trial court erred in its ruling?

II. Analysis

1
Under the contract, Father is also required to pay one-half of the parties’ daughter’s tuition and
books. Brooke’s tuition is paid through an academic scholarship. However, the scholarship requires a certain
amount of volunteer work for the university, which prevents Brooke from seeking other employment.
2
At the time of the trial, Mother testified that Brooke was suffering from a form of cancer.

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 Before we turn to the substantive issues in this case, we address two preliminary
issues raised by Father. Father’s first issue concerns the Gibson County Circuit Court’s
decision to transfer the case to the Gibson County Chancery Court. Father asserts that the
Circuit Court erred in transferring the case when it is undisputed that the Circuit Court had
jurisdiction over both the declaratory judgment action and the breach of contract counter-
complaint. Mother does not dispute that the Circuit Court possessed concurrent jurisdiction
over both matters, but argues that the Chancery Court was the more appropriate forum
because the MDA was entered in Chancery Court and the Chancery Court traditionally deals
with domestic matters in Gibson County. After thoroughly reviewing the record, however,
we can find no evidence that Father objected to the transfer in the trial court. The failure to
raise an issue in the trial court will ordinarily operate as a waiver of that issue on appeal.
Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 511 (Tenn. 2010); Black v. Blount, 938
S.W.2d 394, 403 (Tenn.1996). From what we can discern from the record, Mother filed her
motion to transfer on November 28, 2011. The hearing on the motion was not heard until
January 3, 2011. The trial court subsequently entered an order allowing the transfer on
January 27, 2012. However, Father did not file a written response opposing the motion. In
addition, Father included no transcript or statement of the evidence from the hearing showing
that he objected to the transfer. Thus, nothing in record on appeal indicates that Father timely
objected to Mother’s request. It is well-settled that the appellant bears the burden to prepare
a record that conveys a fair and accurate account of what transpired in the trial court with
regard to those issues that are the bases of the appeal. In re M.L.D., 182 S.W.3d 890, 894
(Tenn. Ct. App. 2005); Nickas v. Capadalis, 954 S.W.2d 735, 742 (Tenn. Ct. App. 1997)
(quoting State v. Boling, 840 S.W.2d 944, 951 (Tenn. Crim. App. 1992)). Because Father
presented no evidence indicating that he objected to the transfer in the trial court, this issue
is waived on appeal.

Father’s next preliminary issue concerns the trial court’s refusal to hear evidence from
Father’s current wife concerning payments made by Father prior to Brooke reaching the age
of majority. The trial court ruled that such testimony was not relevant. The Tennessee
Supreme Court recently clarified the standard of review for questions regarding the
admissibility of evidence: “The trial court's decision to admit or exclude evidence will be
overturned on appeal only when it applies an incorrect legal standard, or reaches a decision
which is against logic or reasoning [and] causes an injustice to the party complaining.”
Mercer v. Vanderbilt Univ. Inc., 134 S.W.3d 121, 131 (Tenn. 2004) (quoting Eldridge v.
Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)) (internal quotation marks omitted); see also In re
Estate of Smallman, --- S.W.3d ----, 2013 WL 682810 (Tenn. 2013). We have previously
held that the abuse of discretion standard is a “high” standard of review. Porter v. Porter,
No. M2012–00148–COA–R3–CV, 2013 WL 313838, at *14 (Tenn. Ct. App. 2013) (Kirby,
J., concurring) (declining to reverse the trial court's ruling only because of the “high

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standard” required under abuse of discretion review). This Court explained the abuse of
discretion standard in State of Tennessee ex rel. Jones v. Looper, 86 S.W.3d 189, 193 (Tenn.
Ct. App. 2000):

A party seeking to have a lower court's holding overturned on
the basis of abuse of discretion undertakes a heavy burden. The
abuse of discretion standard is intended to constrain appellate
review and implies “less intense appellate review and, therefore,
less likelihood of reversal.”. . . . The fact that a decision is
discretionary with a trial court necessarily implies that the trial
court has a choice of alternatives among a range of acceptable
ones; the reviewing court's job is to determine whether the trial
court's decision is within the range of acceptable alternatives,
given the applicable legal principles and the evidence in the
case.

Id. at 193–94 (citations omitted).

Thus, the burden is on Father to show that the trial court abused its discretion by
reaching a decision against logic or reasoning, or that it applied an incorrect legal standard.
From our review of Father’s brief, however, Father fails to cite any law to support his
argument that the trial court abused its discretion in limiting the testimony at issue. The
failure “to cite to any authority . . . regarding [a] position on appeal” constitutes a waiver of
the issue.” Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006).“Courts
have routinely held that the failure . . . to cite relevant authority in the argument section of
the brief as required by Rule 27(a)(7) constitutes a waiver of the issue.” Bean v. Bean, 40
S.W.3d 52, 55–56 (Tenn. Ct. App. 2000). Because of the heavy burden of the abuse of
discretion standard of review, we conclude that Father’s failure to cite any authority to
support his argument on this issue is insufficient to meet his burden.

We next turn to the alleged errors with the trial court’s ruling. The substantive issues
in this case were tried by the trial court without a jury. We review the trial court’s findings
of fact de novo with a presumption of correctness, unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d). No presumption of correctness, however, attaches to the
trial court’s conclusions of law and our review is de novo. Blair v. Brownstone, 197 S.W.3d
681, 684 (Tenn. 2006) (citing Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000)). The
interpretation of a written contract, including a marital dissolution agreement, is a matter of
law and this Court reviews such questions de novo affording the trial court’s conclusions no
presumption of correctness. Simpkins v. Blank, No. M2002-02383-COA-R3-CV, 2003 WL
23093849, at *3 (Tenn. Ct. App. Dec. 30, 2003) (citing Gray v. Estate of Gray, 993 S.W.2d

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59, 63 (Tenn. Ct. App. 1998)).

The substantive issues in this case concern Father’s contractual obligation to provide
post-majority support for his daughter in the form of paying one-half of her college-related
expenses. As explained by this Court:

While it is generally true that a parent cannot be ordered
by the courts to pay child support for an adult child, Blackburn
v. Blackburn, 526 S.W.2d 463, 465 (Tenn. 1975); Garey v.
Garey, 482 S.W.2d 133, 135 (Tenn. 1972), a party to a divorce
may by agreement obligate himself or herself beyond the
support duties imposed by law. Such a provision in an
agreement constitutes “a contractual obligation outside the scope
of the legal duty of support during minority and retains its
contractual nature, although incorporated in a final decree of
divorce.” Penland v. Penland, 521 S.W.2d 222, 224–25 (Tenn.
1975); Blackburn, 526 S.W.2d at 465. Any voluntarily assumed
obligation exceeding the minimum child support required by
statute is based on the parties' contract, enforceable as a
contractual obligation, and controlled exclusively by the
agreement. Haas v. Haas, No. 02A01-9604-CV-00073, 1997
WL 194852, at *3 (Tenn. Ct. App. Apr. 22, 1997) (no Tenn. R.
App. R. 11 application filed).

Bryan v. Leach, 85 S.W.3d 136, 151 (Tenn. Ct. App. 2001). The trial court concluded that
Father’s agreement to pay one-half of the parties’ daughter’s college-related expenses was
a valid and enforceable contractual obligation and Father does not appeal that ruling. Instead,
Father argues that the trial court erred in concluding that Father breached the contract for
expenses when Mother failed to submit the expenses to him for payment prior to trial. Again,
Father fails to cite any authority to support his argument that the trial court erred in requiring
Father to pay these expenses, which the trial court concluded were required to be paid by the
plain language of the MDA and were supported by itemized receipts introduced at trial.
Accordingly, this issue is likewise waived. See ABN AMRO Mortg. Group, Inc. v. Southern
Sec. Federal Credit Union, No. W2011-00693-COA-R3CV, 2011 WL 5590320, at *4
(Tenn. Ct. App. Nov. 17, 2011) (citing Waters v. Farr, 291 S.W.3d 873, 918 (Tenn. 2009)).

Father next argues that the trial court erred in dismissing Father’s declaratory
judgment petition while also clarifying the terms in the contract. As pointed out by Mother,
however, Father’s declaratory judgment petition did not seek a clarification of the terms in
the contract, but rather requested that the trial court declare the entire post-majority support

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clause in the MDA to be “null and void.” As previously discussed, Father does dispute the
trial court’s ruling upholding the validity of the contractual language; therefore, we cannot
conclude that the trial court erred in dismissing Father petition. With regard to the trial
court’s clarification of certain words in the MDA, we note that interpretation of the terms
contained in a contract is a necessary component of any breach of contract action. See
generally 11 Williston on Contracts § 30:2 (4th ed.) (“Interpretation of the language of a
contract is a logical necessity.”). Accordingly, the trial court did not err in defining the terms
in the contract despite its decision to dismiss the declaratory judgment petition.

Father also argues that the trial court erred in dismissing his declaratory judgment
petition, while also adding a requirement, not originally contained in the contract, requiring
Father to remit payment to Mother within thirty days. Father correctly notes that “[a] parent's
agreements to pay college expenses as well as to provide support beyond majority are
contractual obligations for which the parent has no legal duty and which are not subject to
modification by the courts.” Bryan, 85 S.W.3d at 151(citing Penland, 521 S.W.2d at
224–25); see also Dorris v. Dorris, No. 01A01-9304-CV-00170, 1993 WL 380778, at *2
(Tenn.Ct.App. Sept. 29, 1993) (no Tenn. R. App. P. 11 application filed) (the trial court has
no statutory power to award child support beyond the age of majority and no continuing
power to modify such support). We note, however, that “under the Restatement Second, if
the parties have not reached agreement with respect to an essential term, the court may imply
a term which is reasonable under the circumstances.” 11 Williston on Contracts § 31:6 (4th
ed.) (citing Restatement (Second) of Contracts § 204). As explained by the Restatement,
“where there is in fact no agreement [as to an omitted term], the court should supply a term
which comports with community standards of fairness and policy[.]” Restatement (Second)
of Contracts § 204. The Restatement (Second) specifically references the addition of a term
regarding the time for performance as such a term that may be supplied by the court. Id. As
previously stated, Father does not take issue on appeal with the trial court’s ruling that the
post-majority support provision of the MDA is valid and enforceable. Nor does Father argue
that the additional term supplied by the trial court is unreasonable, against the plain language
of the MDA, or in contrast to the parties’ expectations when drafting the agreement. Under
these circumstances, it was appropriate for the trial court to supply the missing term:

[T]he courts should be forthright in their approach and
recognize that there are circumstances when the parties simply
have not reached any agreement with regard to the alleged
omitted term, that is, when interpretation reveals neither an
express nor tacit understanding regarding a particular term. In
these cases, the courts should supply a reasonable term, one that
comports with generally accepted standards of fairness and
public policy.

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11 Williston on Contracts § 31:6. Accordingly, the trial court did not err in supplying the
additional terms.

Finally, Father argues that the trial court erred in awarding Mother her attorney fees.
“The allowance of attorney’s fees is largely in the discretion of the trial court, and the
appellate court will not interfere except upon a clear showing of abuse of that discretion.”
Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn. 2005) (quoting Aaron v. Aaron, 909 S.W.2d
408, 411 (Tenn. 1995)). To support his argument that the trial court abused its discretion in
awarding Mother attorney fees, Father correctly asserts that our courts follow the rule that
parties pay their own legal fees unless a contract, statute, or other recognized exception
expressly authorizes otherwise. As explained by the Tennessee Supreme Court:

Tennessee, like most jurisdictions, adheres to the “American
rule” for award of attorney fees. John Kohl & Co. v. Dearborn
& Ewing, 977 S.W.2d 528, 534 (Tenn. 1998); Pullman
Standard, Inc. v. Abex Corp., 693 S.W.2d 336, 338 (Tenn.
1985). Under the American rule, a party in a civil action may
recover attorney fees only if: (1) a contractual or statutory
provision creates a right to recover attorney fees; or (2) some
other recognized exception to the American rule applies,
allowing for recovery of such fees in a particular case. Taylor,
158 S.W.3d at 359; John Kohl, 977 S.W.2d at 534.

Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 308 (Tenn. 2009).
It is undisputed that the MDA at issue contains no express provision related to attorney fees.
Accordingly, attorney fees are not authorized by the contract in this case. See id. (“In the
context of contract interpretation, Tennessee allows an exception to the American rule only
when a contract specifically or expressly provides for the recovery of attorney fees.”).

Mother argues, however, that because the issue in this case involves the support of the
parties’ daughter, attorney fees are authorized pursuant to statute. Mother relies on Tennessee
Code Annotated Section 36-5-103(c), which states:

The plaintiff spouse may recover from the defendant spouse,
and the spouse or other person to whom the custody of the child,
or children, is awarded may recover from the other spouse
reasonable attorney fees incurred in enforcing any decree for
alimony and/or child support, or in regard to any suit or action
concerning the adjudication of the custody or the change of
custody of any child, or children, of the parties, both upon the

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 original divorce hearing and at any subsequent hearing, which
fees may be fixed and allowed by the court, before whom such
action or proceeding is pending, in the discretion of such court.

Thus, under Tennessee Code Annotated Section 36-5-103(c) “a parent may recover
“reasonable attorney fees incurred in enforcing any decree for . . . child support.’” Massey
v. Casals, 315 S.W.3d 788, 799 (Tenn. Ct. App. 2009). Mother, however, cites no cases in
which this statute has been applied to an award of attorney fees in a case involving only the
payment or non-payment of post-majority support, nor has our research revealed any such
cases. Further, this Court has held that to uphold the award of attorney fees pursuant to
Tennessee Code Annotated Section 36-5-103(c) “[t]he attorney’s work in securing the award
must ultimately inure to the benefit of the minor children.” Miller v. Miller, 336 S.W.3d 578,
586 (Tenn. Ct. App. 2010) (emphasis added) (citing Dalton v. Dalton, 858 S.W.2d 324, 327
(Tenn. Ct. App. 1993)); see also Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn. 2005) (“In
cases involving the custody and support of children, . . . it has long been the rule in this State
that counsel fees incurred on behalf of minors may be recovered when shown to be
reasonable and appropriate.”) (emphasis added) (quoting Deas v. Deas, 774 S.W.2d 167, 169
(Tenn. 1989)). Thus, attorney fees pursuant to Tennessee Code Annotated Section 36-5-
103(c) are only appropriate when the legal fees are incurred on behalf of a minor child. There
is no dispute in this case that the support at issue concerns an adult daughter of the parties
who has reached the age of majority. Accordingly, Tennessee Code Annotated Section 36-5-
103(c) does not authorize the award of attorneys fees in this case. Without any contractual
or statutory authority supporting the award of attorney fees, we must conclude that the trial
court erred in awarding Mother her attorney fees. The award of attorney fees is, therefore,
reversed.

III. Conclusion

The judgment of the Gibson County Chancery Court is affirmed in part, reversed in
part, and remanded for all further proceedings as may be necessary and are consistent with
this opinion. Costs of this appeal are assessed one-half to Appellant Gary Powers, and his
surety, and one-half to Appellee Sherry Powers, for all of which execution may issue if
necessary.

_________________________________
J. STEVEN STAFFORD, JUDGE

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