02/07/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 5, 2017 Session
ALECIA GAYNELL KING McKAY v. MICHAEL PATRICK McKAY
Appeal from the Chancery Court for Williamson County
No. 37745 Deanna B. Johnson, Chancellor
No. M2016-01989-COA-R3-CV
This post-divorce action primarily involves a provision in the parties’ marital dissolution
agreement (“MDA”) concerning disposition of the marital residence. The parties were
divorced in 2011. The wife filed a petition in March 2015, seeking, inter alia, to enforce
the divorce decree and MDA by obtaining an order requiring the husband to vacate the
marital residence so that she could reside there with the parties’ minor child and her three
foster children. The MDA provides that the wife is to retain sole and exclusive
possession of the marital residence until it is sold while the husband is to deposit one-half
of the monthly mortgage payment into the wife’s personal checking account each month
“in lieu of” spousal support. The MDA also provides that the marital residence would
not be placed on the market for sale until January 1, 2013, but it does not supply a
deadline by which the parties would have to place the home on the market. At the time
that the wife commenced this action, the wife had vacated the home, and the husband had
been residing there for approximately one year. Following a bench trial conducted in
May 2016, the trial court granted the wife’s petition to enforce the MDA, entering an
order directing the husband to vacate the marital residence immediately and to make
needed repairs to the home. The court also found that a purported post-divorce oral
agreement between the parties for the husband to purchase the wife’s share of the marital
residence had not constituted a valid contract. Crediting the husband with $12,000.00 he
had paid to the wife toward purchase of the marital residence as payment toward a
spousal support arrearage, the trial court ordered the husband to pay additional spousal
support arrears at a rate of $300.00 per month and to pay the wife’s attorney’s fees.
Specifically at issue on appeal is a provision the trial court included in the order, directing
that the wife, the parties’ minor child, and the wife’s three foster children could remain in
the marital residence until the parties’ minor child, who was then eleven years of age,
graduated from high school or became otherwise emancipated. Also finding that the
husband had behaved in a harassing and intimidating manner toward the wife, the trial
court granted the wife’s request for a restraining order in part, limiting the number of
times each day the husband could text the wife and his minor child. Seeking to have the
provision at issue set aside, the husband filed a motion to alter or amend the judgment,
which the trial court denied. The husband has appealed. Having determined that the trial
court’s order impermissibly modified the MDA by creating an extended timeframe for
sale of the marital residence not originally contemplated by the parties, we vacate the
provision in the judgment allowing the wife to remain in the residence until the parties’
minor child graduates from high school or is otherwise emancipated. Inasmuch as the
husband has raised this sole issue on appeal, we expressly do not disturb the remainder of
the trial court’s judgment. We remand for further proceedings consistent with this
opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed in Part, Vacated in Part; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and ARNOLD B. GOLDIN, J., joined.
E. Covington Johnston, Jr., Franklin, Tennessee, for the appellant, Michael Patrick
McKay.
Shawn P. Sirgo, Fairview, Tennessee, for the appellee, Alecia Gaynell King McKay.
OPINION
I. Factual and Procedural Background
The petitioner, Alecia Gaynell King McKay (“Wife”), and the respondent,
Michael Patrick McKay (“Husband”), were divorced by entry of final decree in the
Williamson County Chancery Court (“trial court”) on December 6, 2011. Two children
had been born to the marriage, one an adult daughter at the time of the divorce, and the
other a son, Q.M., who was then six years of age. In addition, Wife had three foster
daughters residing with her, a nine-year-old and a set of eight-year-old twins. The parties
entered into the MDA and a permanent parenting plan providing for Q.M.’s care, both of
which were approved by the trial court and incorporated into the final decree. The
permanent parenting plan provided that Husband would pay $606.00 per month to Wife
for Q.M.’s support. According to the trial court’s findings in its memorandum opinion
and order in the instant action, the foster children had remained with Wife since the
divorce and continued to reside with her throughout the proceedings.
Wife commenced the instant action when she filed a petition to enforce the
divorce decree, hold Husband in contempt, and obtain a restraining order against
Husband on March 19, 2015. In her petition, Wife sought, inter alia, an order requiring
Husband to vacate the marital residence so that she could reside there with Q.M. and her
2
foster daughters (collectively, “the Children”), as well as Wife’s mother, M.K. At the
time of the petition’s filing, Wife, M.K., and the Children were residing in a rented,
smaller home in Maury County, and the Children were in danger of losing the special
needs schooling programs they were enrolled in within Williamson County.
It is undisputed that according to the MDA, Wife was to retain sole and exclusive
possession of the marital residence until it was sold, and the residence was not to be
placed on the market for sale until January 1, 2013, unless otherwise agreed by the parties
in writing. Pending sale of the marital residence, Husband was to deposit one-half of the
monthly mortgage payment, or $800.00,1 into Wife’s personal checking account each
month. The MDA includes the following provision regarding the marital residence in
relevant part:
The parties and Wife’s mother own a marital residence located at . . .
Galloway Drive, Franklin. [M.K.], Wife’s mother is a mortgage holder,
along with the parties. Pursuant to the Agreed Order of September 20,
2010, Wife shall continue to have sole and exclusive possession of the
marital residence until it is sold. Pending the closing of the sale of the
marital residence, Husband shall pay to Wife, by direct deposit into her
checking account, one-half of the mortgage indebtedness payment due and
owing each month on the property and furnish her one-half of said payment
no later than five (5) days before the payment is due, with the exception of
November and December, 2011 and the January 2012 payment, of which
Husband shall be responsible for paying Wife One Thousand Dollars
($1,000.00) for each of those payments, for a total of $3,000.00, payable
November 20, 2011, December 20, 2011, and January 20, 2011 [sic], all by
direct deposit. The obligation to pay Wife monthly, pursuant to this
paragraph is hereby in lieu of alimony to Wife.
***
The parties agree that the property shall not be placed on the market
for sale until January 1, 2013, unless otherwise agreed on by the parties,
subsequent to the entry of the Final Decree of Divorce, in writing. The
parties shall either place the property on the market for sale by owners or
mutually agree upon a real estate agent to sell the property. In the event the
parties mutually agree upon a real estate agent, the parties shall follow the
advice of the agent concerning the listing price, and the acceptance of offers
1
The MDA does not include the exact amount of the monthly mortgage payment. Neither party disputes
the trial court’s finding in its memorandum opinion and order that one-half of the mortgage payment
equaled $800.00.
3
to buy, and the making of offers to sell. At the closing of the sale of the
property, after the payment of real estate commission, insurance, any taxes
due on property, and any indebtedness encumbering the property, the
parties will share the net equity proceeds equally, except that Wife shall be
entitled to Three Thousand Two Hundred ($3,200.00) dollars from
Husband’s one-half net proceeds. Each party shall sign whatever
documents are necessary to list the house for sale, and that are required to
be executed at the closing of the sale. Neither party will incur any further
indebtedness encumbering the property, and in the event that a lien exists
on the property at the time of sale, the lien shall be paid by the party
incurring or responsible for the indebtedness causing the lien.
Following entry of the divorce decree, Wife resided in the marital residence with
the Children and M.K. until July 2013. During that timeframe, Husband resided in
Texas. Wife testified during trial that she moved out of the marital residence in July
2013 because Husband had been harassing her regarding her parenting of Q.M.
According to Husband’s testimony, however, Wife desired to relocate because she was
having problems with the homeowners’ association and could not afford to maintain the
residence.
It is undisputed that when Wife vacated the marital residence in July 2013, the
parties orally agreed that Husband would pay Wife between $40,000.00 and $45,000.00
to purchase her interest in the residence. Husband paid Wife a total of $12,000.00 in
three payments made between October 2013 and March 2014. On March 27, 2014, Wife
drafted a handwritten receipt, presented as an exhibit during trial, which stated the
following:
I, Alecia McKay, have received from Michael McKay $12,000 so far, to
date, March 27, 2014. This amt. is payment toward the purchase of the
[marital residence].
The receipt was not signed by Husband. Husband acknowledged during trial that he
made no further payments toward Wife’s interest in the marital residence beyond the
$12,000.00 memorialized by Wife’s receipt.
Husband resided alone in the marital residence for approximately one year from
October 2013 to October 2014. The parties’ adult daughter and her fiancé subsequently
moved into the marital residence with Husband until they were married in April 2015. At
the time of trial, Husband resided in the marital residence by himself. The home had not
been placed on the market, and M.K.’s name was still on the deed. The trial court noted
in its memorandum and order that the parties had taken the mortgage loan out in M.K.’s
4
name because the parties had been unable to qualify for a home loan.2 According to the
trial court’s findings, at the time of the divorce decree’s entry, the marital residence was
appraised for $350,000.00 but required repairs estimated at approximately $35,000.00 to
$40,000.00 in order to be ready for sale. At that time, the parties owed approximately
$216,000.00 on the mortgage. At the time of the trial court’s July 2016 order in the
instant action, the marital residence had been appraised for $420,000.00 without
functioning air conditioning, and the mortgage reflected an outstanding debt of
approximately $205,000.00.
Regarding Husband’s alleged harassment of Wife, Wife attached a collection of
text messages to her petition, demonstrating that Husband’s messages were often
threatening and laced with profanity and that Husband often sent several messages within
a short timeframe. Wife asserted in her petition that she had agreed to sell her interest in
the marital residence “[u]nder duress and in an effort . . . to stop [Husband’s] ongoing
abuse . . . .” She further asserted that the MDA had never been amended to reflect an
agreement for sale of her interest. Wife also averred that Husband owed “in excess of
$4,000.00” in arrears on child support, had collected insurance payments for water
damage to the marital residence stemming from an air conditioner malfunction without
making the corresponding repairs, and had made telephone calls to the Williamson
County School System specifically to inform officials that Q.M. no longer resided in
Williamson County. Wife further stated in her petition that she had requested and
received a grace period during which the Children would be able to stay in Williamson
County schools while Wife sought to reestablish residence in the county. Husband filed a
response and counter-petition, denying all substantive allegations and requesting that the
trial court amend the divorce decree and MDA to reflect the parties’ oral agreement for
Husband’s purchase of Wife’s interest in the marital residence.
The trial court conducted a bench trial on May 5, 2016. Although no transcript of
the trial is in the record, Husband’s counsel filed a statement of the evidence, the
accuracy of which is not in dispute on appeal. The trial court entered its “Memorandum
and Order” on July 22, 2016. As pertinent to the issue raised on appeal, the court granted
Wife’s petition to enforce the MDA, ordering Husband to vacate the marital residence
immediately and to make needed repairs, including replacing the air conditioning. The
court specifically found that the purported oral agreement between the parties for the sale
of Wife’s interest in the marital residence to Husband did not constitute a valid contract.
The court stated in pertinent part:
2
Although Husband’s counsel stated during oral argument before this Court that M.K. had conveyed her
interest in the marital residence to the parties via quitclaim deed, the record contains no documentation of
such a conveyance.
5
[Wife’s] request for [Husband] to vacate the marital residence is
well-taken. Pursuant to the MDA, [Wife] was to reside in the marital
residence with the children until the home was sold. The home has not
been sold. [Husband] has taken absolutely no steps to sell the home or to
even get the home into a marketable condition.
In addition, [Husband] was to pay half of the monthly mortgage
payment ($800) while [Wife] and the children were living in the marital
residence. [Wife] was forced to leave the marital residence in the hopes of
escaping [Husband’s] harassment. Thus, it is because of [Husband’s]
wrong-doing that the plan to sell the marital residence did not materialize.
[Husband] seems to rely on the “agreement” the parties had for
[Husband] to buy out [Wife’s] share of the home. Such reliance is
misplaced. The “agreement” [Wife] and [Husband] made for [Husband] to
purchase [Wife’s] interest in the marital residence was not a valid contract.
***
The “agreement” the parties signed did not contain an amount for which
[Husband] would purchase the home.3 Thus, it was not “sufficiently
definite to be enforced.” Staubach [Retail Servs.-Se, LLC v. H.G. Hill
Realty Co.], 160 S.W.3d [521, 524] (Tenn. 2005)]. Further, it was not
“sufficiently explicit” such that this Court can perceive what the parties’
obligations are. . . . Here, the parties have not provided a “practicable
method for determining [the] price or compensation” [(quoting Vatt v.
James, 180 S.W.3d 99, 108 (Tenn. Ct. App. 2005) (in turn quoting Doe v.
HCA Health Servs. of Tenn., Inc., 46 S.W.3d 191, 196 (Tenn. 2001))].
Thus, the contract is too indefinite and uncertain for enforcement.
In addition, the “agreement” was not signed by [Husband].
[Husband’s] failure to sign the “agreement” results in there being no
evidence of a “meeting of the minds of the parties in mutual assent to the
terms” as required for a valid and enforceable contract. See [Staubach],
160 S.W.3d [at 524 (quoting Doe, 46 S.W.3d at 196)]. Furthermore, the
MDA requires that any modifications be made in writing and signed by
both parties.
3
As the trial court subsequently notes, Husband did not sign Wife’s receipt for the $12,000.00 paid
toward her interest.
6
Moreover, this “agreement” is “against public policy.” See,
Staubach, [160 S.W.3d at 524 (quoting Doe, 46 S.W.3d at 196)]. [M.K.]
has a vested interest in the marital residence and the parties should not be
permitted to cut [M.K.] out of the proceeds of the sale of the home.
Finally, even if this “agreement” was a valid contract, it is not
enforceable. [Wife] wrote this document and accepted the money from
[Husband] out of duress because [Husband] had not paid child support or
spousal support. [Wife] needed the money to support the family. . . . Here,
[Wife] acted under economic duress when she entered into this
“agreement” with [Husband]. Accordingly, this “agreement” is not an
enforceable contract.
For all of these reasons, the Court finds that the document was not a
valid contract. The $12,000 [Husband] paid to [Wife] shall be construed by
the Court to be payment toward [Husband’s] arrears for spousal support.
[Husband] is hereby Ordered to vacate the premises immediately. [Wife]
and the children are hereby permitted to move into the marital residence at .
. . Galloway Drive, Franklin, Tennessee. [Wife] and the children may
remain in this residence until [Q.M.] graduates High School or is otherwise
emancipated.
(Additional internal citations omitted.)
The trial court also ordered Husband to pay additional spousal support arrears at a
rate of $300.00 per month and to pay Wife’s attorney’s fees. Concerning the text
messages presented during trial, the court specifically found that many of the messages
that had been sent by Husband to Wife were “harassing, offensive, and vulgar . . . .” The
court granted Wife’s request for a restraining order in part, ordering Husband to text
Q.M. no more than five times a day and to text Wife no more than two times per day.
Upon Wife’s counsel’s affidavit, the trial court entered an order on December 12, 2016,
awarding to Wife $8,858.49 in attorney’s fees.
Husband filed a motion to alter or amend the judgment, confining his argument to
an assertion that the trial court improperly modified the parties’ MDA as to disposition of
the marital residence by ordering that Wife and the Children could remain in the marital
residence until Q.M. graduated from high school or was otherwise emancipated. Without
further hearing, the trial court denied Husband’s motion to alter or amend in an order
entered August 18, 2016. Husband timely appealed.
7
II. Issue Presented
Husband presents one issue on appeal, which we have restated as follows:
Whether the trial court erred by modifying the parties’ MDA when the
court ruled that Wife and the Children could continue residing in the
marital residence until Q.M., the parties’ minor child, graduated from high
school or became otherwise emancipated.
III. Standard of Review
We review a non-jury case de novo upon the record, with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000). We review questions of law de novo with no presumption of correctness.
Bowden, 27 S.W.3d at 916 (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn.
1998)); see also In re Estate of Haskins, 224 S.W.3d 675, 678 (Tenn. Ct. App. 2006).
The trial court’s determinations regarding witness credibility are entitled to great weight
on appeal and shall not be disturbed absent clear and convincing evidence to the contrary.
See Morrison v. Allen, 338 S.W.3d 417, 426 (Tenn. 2011); Jones v. Garrett, 92 S.W.3d
835, 838 (Tenn. 2002).
Marital dissolution agreements are contractual and, once approved by the trial
court, “become legally binding obligations on the parties.” Long v. McAllister-Long, 221
S.W.3d 1, 8-9 (Tenn. Ct. App. 2006), perm. app. denied (Tenn. Jan. 29, 2007)
(explaining that with the two “notable exceptions” of child support and alimony, which
remain modifiable by the courts, “the agreements in a marital dissolution agreement are
enforceable contract obligations”). We review issues of contract interpretation de novo.
See Dick Broad. Co. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 659 (Tenn. 2013).
As this Court has previously explained:
In resolving a dispute concerning contract interpretation, our task is
to ascertain the intention of the parties based upon the usual, natural, and
ordinary meaning of the contract language. Planters Gin Co. v. Fed.
Compress & Warehouse Co., Inc., 78 S.W.3d 885, 889-90 (Tenn. 2002)
(citing Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999)). A
determination of the intention of the parties “is generally treated as a
question of law because the words of the contract are definite and
undisputed, and in deciding the legal effect of the words, there is no
genuine factual issue left for a jury to decide.” Planters Gin Co., 78
S.W.3d at 890 (citing 5 Joseph M. Perillo, Corbin on Contracts, § 24.30
8
(rev. ed. 1998); Doe v. HCA Health Servs. of Tenn., Inc., 46 S.W.3d 191,
196 (Tenn. 2001)). The central tenet of contract construction is that the
intent of the contracting parties at the time of executing the agreement
should govern. Planters Gin Co., 78 S.W.3d at 890. The parties’ intent is
presumed to be that specifically expressed in the body of the contract. “In
other words, the object to be attained in construing a contract is to ascertain
the meaning and intent of the parties as expressed in the language used and
to give effect to such intent if it does not conflict with any rule of law, good
morals, or public policy.” Id. (quoting 17 Am. Jur. 2d, Contracts, § 245).
Kafozi v. Windward Cove, LLC, 184 S.W.3d 693, 698 (Tenn. Ct. App. 2005), perm. app.
denied (Tenn. Jan. 30, 2006).
IV. Modification of MDA
Husband contends that the trial court improperly modified the MDA when it
ordered that Wife and the Children could reside in the marital residence until Q.M.’s
graduation from high school or other emancipation. In response, Wife asserts that the
parties granted the trial court authority to modify the MDA because they each
respectively requested modification of the provision concerning the marital residence.
She thereby argues that Husband waived his right to raise this issue when he requested
that the trial court memorialize the parties’ purported oral agreement for the sale of
Husband’s interest in the marital residence to Wife. She also argues that the trial court
properly gave her an expanded timeframe for sale of the home upon the court’s finding
that the parties’ plan to sell the home had failed because of Husband’s “wrong-doing.”
Upon careful review, we conclude that the trial court lacked authority to modify the
MDA by extending the time period for sale of the home beyond a reasonable timeframe
anticipated by the parties’ agreement in the MDA.
At the outset, we note that on appeal, Husband does not raise an issue regarding
the trial court’s finding that the parties’ purported post-divorce agreement for sale of
Wife’s interest in the marital residence to Husband was invalid. The trial court found,
inter alia, that the parties’ oral agreement was “too indefinite and uncertain for
enforcement” and that Wife’s handwritten receipt for $12,000.00 received from Husband
toward purchase of the home was unenforceable because it did not include a total
purchase price or Husband’s signature. As the court noted, the parties’ MDA included
the following provision: “This Agreement may be altered, amended or cancelled only by
instrument in writing signed by each of the parties, and this requirement cannot be
waived by oral agreement.” The trial court also found that Wife had entered into the
purported post-divorce agreement under duress. Inasmuch as Husband has not appealed
9
the trial court’s findings regarding the purported post-divorce agreement, we will address
solely the parties’ provision concerning the marital residence as set forth in the MDA.
Once an MDA is incorporated into a final decree, the trial court retains authority
to modify spousal and child support but not to modify the parties’ agreement as to
distribution of marital property, which is contractual. See Long, 221 S.W.3d at 9. In
support of his argument that the trial court improperly modified the MDA, Husband relies
in part on this Court’s recent decision in Gibbs v. Gibbs, No. E2015-01362-COA-R3-CV,
2016 WL 4697433 (Tenn. Ct. App. Sept. 7, 2016), in which this Court explained:
The characterization of a marital dissolution agreement as both a
contract between divorcing parties and as a part of the court’s decree
creates something of a legal anomaly. On one hand, courts have continuing
statutory authority to modify certain provisions of a marital dissolution
agreement related to child support and alimony when justified by changed
circumstances. See Tenn. Code Ann. § 36-5-101(a)(1) (providing for the
modification of child support for minor children); Tenn. Code Ann. § 36-5-
121(a) (providing for the modification of certain alimony awards). On the
other hand, subsequent modification of an agreement that retains its
contractual nature would violate the Tennessee Constitution’s prohibition
against the impairment of contractual obligations. Blackburn v. Blackburn,
526 S.W.2d 463, 465 (Tenn. 1975) (citing Tenn. Const. art. I, § 18).
In order to reconcile those competing interests, the Tennessee
Supreme Court articulated the merger doctrine in Penland v. Penland, 521
S.W.2d 222 (Tenn. 1975). Penland involved a marital dissolution
agreement in which the husband agreed to pay all educational expenses for
the children beyond the high school level. Id. at 223. After the husband
failed to pay any of the college expenses incurred by the parties’ daughter,
the wife filed a petition seeking to enforce the agreement. Id. The trial
court ruled that the husband had no legal obligation to support the child
after age 18 and granted summary judgment in his favor. Id. The
Tennessee Supreme Court reversed. Id. at 225. In doing so, the court
explained that when a marital dissolution agreement is incorporated into a
divorce decree, only certain provisions of the agreement “merge” into a
divorce decree and lose their contractual nature:
The authority of the courts to order child support and,
if necessary, to enforce same by the process of contempt, is
statutory, and generally exists only during minority. When
the husband and wife contract with respect to the legal duty of
10
child support, upon approval of that contract, the agreement
of the parties becomes merged into the decree and loses its
contractual nature.
[T]he reason for stripping the agreement of the parties
of its contractual nature is the continuing statutory power of
the Court to modify its terms when changed circumstances
justify. It follows, and we so hold, that only that portion of a
property settlement agreement between husband and wife
dealing with the legal duty of child support, or alimony over
which the court has continuing statutory power to modify,
loses its contractual nature when merged into a decree for
divorce.
Id. at 224 (citations omitted). The court concluded that despite being
incorporated into the divorce decree, the provision requiring the husband to
pay college expenses was “a contractual obligation outside the scope of the
legal duty of support during minority” and therefore not subject to
modification by the courts. Id. at 224-25.
Relying on Penland, Husband contends that because the property
distribution provisions of the marital dissolution agreement at issue in this
case retained their contractual nature, they must be enforced by suing for a
breach of contract rather than by an action for contempt. As Husband
correctly asserts, a provision related to the distribution of marital property
does not lose its contractual nature by merger into the divorce decree and is
therefore not subject to modification by the courts. Towner v. Towner, 858
S.W.2d 888, 892 (Tenn. 1993).
2016 WL 4697433, at *4-5 (ultimately affirming the trial court’s contempt order as a
means of enforcing the real property provision in the parties’ MDA while modifying the
order to more closely track the requirements provided in the MDA).
In this case, the MDA provides that Wife “shall continue to have sole and
exclusive possession of the marital residence until it is sold,” with Husband paying to
Wife “one-half of the mortgage indebtedness payment due and owing each month on the
property” “in lieu of alimony.” As to the timing of the home’s sale, the parties agreed
that “the property [would] not be placed on the market for sale until January 1, 2013,
unless otherwise agreed on by the parties . . . .” The MDA further provides that the
parties “shall either place the property on the market for sale by owners or mutually agree
upon a real estate agent to sell the property.” The parties further agreed that if they listed
11
the marital residence with a real estate agent, they would “follow the advice of the agent
concerning the listing price, and the acceptance of offers to buy, and the making of offers
to sell.” The remainder of the MDA provision concerning the marital residence sets forth
how the funds from the sale will be distributed, as well as the parties’ agreement that they
will execute all documents necessary to list the home for sale and close the sale and that
they will not further encumber the property.
Therefore, although the MDA provides a date by which the parties could have, at
the earliest, placed the marital residence on the market for sale (January 1, 2013), it does
not provide a date by which the parties are required to place the marital residence on the
market. Upon careful review, we determine that the language of the provision does
anticipate placement of the marital residence on the market within a reasonable
timeframe after January 1, 2013. See Minor v. Minor, 863 S.W.2d 51, 54 (Tenn. Ct. App.
1993), perm. app. denied (Tenn. June 28, 1993) (“Where the parties have not clearly
expressed the duration of the contract, or where the duration of the contract is indefinite,
the courts will imply that they intended performance to continue for a reasonable time.”).
Nothing in the MDA provision indicates that the parties anticipated waiting to sell the
marital residence until after Q.M., who was six years of age when the divorce decree was
entered, would graduate from high school or become otherwise emancipated,
approximately twelve years later. Because the trial court did not retain authority to
modify a contractual provision for other than spousal or child support, see Long, 221
S.W.3d at 9, we conclude that the trial court did not have the authority to modify the
parties’ MDA to extend the timeframe for sale of the home beyond a timeframe that
reasonably may be inferred from the parties’ original agreement.
In arguing that Husband waived his right to raise this issue when he requested in
his counter-petition that the trial court modify the MDA to memorialize the parties’
purported post-divorce agreement, Wife is essentially asking this Court to determine that
Husband no longer has a right to the benefit of the original agreement he entered into
despite the trial court’s ultimate finding that the parties’ post-divorce “agreement” was
invalid. Wife’s argument in this regard is unavailing. In the absence of a valid post-
divorce agreement, written and executed by both parties as required by the MDA, the
original MDA provision regarding the marital residence retains its contractual nature and
remains in effect. See, e.g. Hannahan v. Hannahan, 247 S.W.3d 625, 627 (Tenn. 2007),
perm. app. denied (Tenn. Oct. 22, 2007) (concluding that although “the parties’
agreement at the time of divorce as to disposition of the marital residence was not subject
to modification by the trial court,” “it was subject to modification by the parties”).
Furthermore, contrary to Wife’s ancillary argument that Husband is “estopped” from
requesting the alternative relief of enforcement of the original MDA provision,
“alternative pleadings are expressly permitted, regardless of consistency.” See Barnes v.
Barnes, 193 S.W.3d 495, 501 (Tenn. 2006) (“Wife is not estopped from seeking to
12
enforce the agreement simply by the fact that she asked for, in the alternative, an
equitable division of the marital property.”).
Wife also asserts that the trial court did not err in ordering the extended timeframe
for her occupation of the marital residence due to Husband’s misconduct. In addition to
finding that Husband owed arrearages to Wife for spousal support and child support and
that the purported post-divorce agreement for sale of Husband’s interest in the home to
Wife was invalid, the trial court found that Husband had (1) exerted duress that caused
Wife to move out of the marital residence, (2) breached the provision in the MDA
concerning sale of the marital residence by continuing to live in the residence himself and
failing to place the residence on the market or ready it for sale, and (3) failed to make
repairs to the air conditioning in the marital residence for which he had collected
insurance funds. The court thereby found that the plan to sell the marital residence
contained in the MDA had not come to fruition due to Husband’s “wrong-doing” and that
he had breached the parties’ contract in the MDA as to the marital residence.
On appeal, Husband has not raised an issue disputing the trial court’s finding that
he breached the original agreement in the MDA for the parties to sell the marital
residence. The judicial remedies for breach of a contractual provision in the MDA that
does not remain in the trial court’s control for modification, in other words, a provision
other than one for child or spousal support, sound in contempt and breach of contract.
Long, 221 S.W.3d at 9-10, nn.9-10 (explaining that “[b]asic child support for minor
children and long-term alimony are examples of provisions that remain in the court’s
control and are subject to modification” while examples of provisions that do not remain
in the trial court’s control for modification include “alimony in solido awards, provisions
involving the disposition of the marital estate, and agreements for child support in excess
of the support required by law”). In her petition, Wife sought enforcement of the MDA
provision regarding the marital residence, which the trial court properly granted in ruling
that Husband must vacate the residence while permitting Wife and the Children to return
to the residence until it is sold.
However, the trial court went beyond its authority to grant a remedy to Wife when
it modified a contractual provision it did not have the authority to modify by extending
the timeframe for sale of the marital residence beyond a reasonable time period
contemplated in the MDA. See Long, 221 S.W.3d at 9 (“Because the parties are not
entitled to a marital dissolution agreement that is different from the one they negotiated,
we must avoid rewriting the agreement under the guise of ‘construing’ it.”). We vacate
the provision of the trial court’s judgment permitting Wife and the Children to remain in
the marital residence until Q.M. graduates from high school or is otherwise emancipated.
13
Noting that the applicable MDA provision is missing the element of an ending
date for performance, we remand for the trial court to determine a reasonable date by
which the parties shall put into effect their original agreement in the MDA to place the
marital residence on the market for sale. As this Court has explained:
[W]here the parties have unambiguously set out the terms of their
agreement, courts will enforce those terms as written, regardless of any
inequity arising from that enforcement. On the other hand, courts may
incorporate a reasonableness requirement into any contract. Moore v.
Moore, 603 S.W.2d 736 (Tenn. Ct. App. 1980). In Moore, this court was
called upon to interpret a provision in a real estate sales contract that made
the contract contingent upon the buyer’s “ability to obtain adequate
financing.” The proof showed that although the buyer was unable to
secure financing in Shelbyville, where the property was located, he was
able to obtain adequate financing in Nashville. In this factual context, the
court stated that, “a qualifying word which may be read into every contract
is the word ‘reasonable,’ or its equivalent ‘reasonably.’” Id. at 739.
Consequently, the court interpreted the contingency as meaning
“reasonable ability to obtain sufficient financing by ordinary, recognized
means.” Id. The court then found that the contract was subject to
reasonable application of the words used therein “according to the known
situation of the parties,” but was not ambiguous. Id.
The Moore court’s language that reasonableness may be read into
every contract has been quoted, cited, and applied in a number of cases
decided by this court. See, e.g., Hurley v. Tenn. Farmers Mut. Ins. Co.,
922 S.W.2d 887, 892 (Tenn. Ct. App. 1995) (holding that insurance
company’s demand for production of financial records and assertion that
insured’s failure to produce was a breach of the cooperation clause of the
insurance contract could be considered unreasonable). In fact, in some
instances, we have stated that the qualifying word “reasonable” must be
read into every contract. Minor v. Minor, 863 S.W.2d 51, 54 (Tenn. Ct.
App. 1993). In Minor, because the contract did not include a time for
performance, a reasonable time was implied, based upon Moore and upon
the well-settled rule that missing contract terms may be implied. Id. In
McClain v. Kimbrough Constr. Co., 806 S.W.2d 194, 198 (Tenn. Ct. App.
1991), this court held that “the extent of contractual obligations should be
tempered by a ‘reasonableness’ standard,” citing Moore.
Pylant v. Spivey, 174 S.W.3d 143, 152 (Tenn. Ct. App. 2003), perm. app. denied (Tenn.
June 1, 2004) (underlined emphasis added); see, e.g., Buckner v. Goodman, No. E2016-
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00150-COA-R3-CV, 2016 WL 7479141, at *11 (Tenn. Ct. App. Dec. 29, 2016)
(affirming the trial court’s inference of a reasonable date of performance based on parol
evidence surrounding the original agreement when the parties had failed to include a
specific date of performance in their contract).
In this case, the trial court may conduct an evidentiary hearing on remand as
necessary to determine a reasonable date by which the parties must place the marital
residence on the market.4 We emphasize that our decision does not disturb the remainder
of the trial court’s judgment, including the trial court’s direction that Wife and the
Children are permitted to occupy the marital residence until the residence is sold pursuant
to the applicable provision of the MDA.
V. Conclusion
For the reasons stated above, we vacate the provision of the trial court’s judgment
permitting Wife and the Children to remain in the marital residence until Q.M. graduates
from high school or is otherwise emancipated. Inasmuch as this provision constitutes the
sole issue raised on appeal, we do not disturb the remainder of the trial court’s judgment,
including the grant of Wife’s petition to enforce the MDA provision regarding the marital
residence and thus allow Wife and the Children to reside in the marital residence until it
is sold. This case is remanded to the trial court for proceedings consistent with this
opinion and collection of costs below. We specifically remand for the trial court to
determine a reasonable date by which the parties shall put into effect their original
agreement in the MDA to place the marital residence on the market for sale. Because the
applicable provision of the MDA was missing the element of an ending date for
performance, the trial court may conduct an evidentiary hearing to determine a
reasonable date by which the parties must place the marital residence on the market.
Costs on appeal are taxed one-half to the appellant, Michael Patrick McKay, and one-half
to the appellee, Alecia Gaynell King McKay.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
4
In her brief on appeal, Wife avers that Husband had, at the time of the brief’s submission, failed to
comply with the trial court’s order to make repairs to the marital residence, replace the air conditioning in
the residence, and pay his spousal support arrearage. She thereby argues that Husband should be
precluded from relief on remand due to “unclean hands.” Noting that Wife has not filed a motion for
consideration of post-judgment facts pursuant to Tennessee Rule of Appellate Procedure 14, we decline to
consider purported facts occurring after the judgment and outside the record. See Tenn. R. App. P. 13(c).
15