                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                 December 7, 2000 Session

       EDDIE JOE HURST, SR. v. SHEILA GAIL WILLIAMS HURST

                 Appeal from the General Sessions Court for Blount County
                           No. S-619, William R. Brewer, Judge

                                    FILED APRIL 30, 2001

                                No. E2000-00458-COA-R3-CV


This appeal from the Blount County General Sessions Court concerns whether the Trial Court erred
in dismissing the Complaint to Enforce Judgment filed by the Appellant, Sheila Gail Williams Hurst.
Ms. Hurst appeals the decision of the General Sessions Court. We reverse the decision of the Trial
Court and remand for further proceedings, if any, consistent with this opinion. We adjudge cost of
the appeal against the Appellee, Eddie Joe Hurst, Sr.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the General Sessions Court Reversed;
                                   Cause Remanded

HOUSTON M. GODDARD, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR.
and D. MICHAEL SWINEY , JJ., joined.

Robert M. Cohen, Maryville, Tennessee, for the Appellant, Sheila Gail Williams Hurst.

Craig L. Garrett, Maryville, Tennessee, for the Appellee, Eddie Joe Hurst, Sr.

                                           OPINION

        This appeal arises from the first and second divorce actions between Sheila Gail Williams
Hurst, the Appellant, and Eddie Joe Hurst, Sr., the Appellee. Ms. Hurst appeals the judgment of the
Blount County General Sessions Court and presents for our review one issue which we restate:
whether the Trial Court erred in dismissing Ms. Hurst’s Complaint to Enforce the Judgment.

       We reverse the judgment of the Trial Court and remand for further proceedings, if any,
consistent with this opinion.

        The parties were married initially in Sevier County on May 6, 1968. They were divorced by
the General Sessions Court for Blount County on April 1, 1991. A marital dissolution agreement
(hereinafter referred to as MDA #1) was entered into by the parties and incorporated into the final
decree for divorce. The parties remarried on March 8, 1992 and were divorced again by final decree
on June 30, 1997 in the General Sessions Court for Blount County. A second marital dissolution
agreement (hereinafter referred to as MDA #2) was entered into by the parties and incorporated into
the final decree for divorce. According to the record, Ms. Hurst was not represented by counsel in
the second divorce proceeding.

        The marital dissolution agreements are at issue on appeal. The parties divided certain
property in MDA #1 as follows:

                  4. Husband shall pay to wife one-half of the husband’s Alcoa
                  Retirement Plan having Alcoa pay same to wife. Said sum shall be
                  paid as soon as possible, and husband shall execute whatever papers
                  are necessary in order for Alcoa to release one-half of the Retirement
                  Fund to wife.
                  5. Wife shall receive One Hundred Percent (100%) of the stock at
                  Merrill Lynch.
                  6. Wife shall receive one-half of all sums received by husband as a
                  result of the Alcoa Profit Sharing Program since the parties separated
                  in October 1990.

The aforementioned assets in MDA #1 were never distributed to Ms. Hurst, nor was any action taken
by either party to arrange for Ms. Hurst to receive this property. The second Marital Dissolution
Agreement divided personal property as follows:

                  7. The parties have previously divided all other personal property,
                  furniture, and furnishings, and each party shall receive all items
                  which are in their respective possession at the time of entry of the
                  Final Decree in this cause.

Following her second divorce from Mr. Hurst, Ms. Hurst filed a Complaint to Enforce Judgment on
April 30, 1998 requesting that the Court enforce the property settlement paragraphs 4, 5, and 6 from
MDA #1. Following a hearing on May 4, 1999, the Trial Court issued a memorandum opinion1
which states in pertinent part:

                  It is the Defendant’s position that the Final Decree of Divorce is just
                  like any other judgment and that it can be satisfied just like any other
                  judgment obtained by one party against the other. The Plaintiff’s
                  position is that the subsequent remarriage and re-divorce caused the
                  previous divorce decree to become null and void. At first glance it
                  would appear that the Defendant’s position should be upheld

         1
            In the orig inal Com plaint to Enforce Judgment, the Plaintiff was Sheila Gail Hurst and the Defendant was
Eddie Joe Hurst. In the M emorand um Op inion, the Court rev ersed the positions of M r. and Ms. Hurst, and referred
to the Plaintiff as Mr. H urst and th e Defen dant as M s. Hurst.

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               inasmuch as the judgment is not yet satisfied. However, the Court
               must look to the uniqueness of the situation before it and fashion a
               equitable remedy. It seems to the Court that it is almost like the
               original divorce decree was compromised and settled by the parties’
               subsequent remarriage and re-divorce. It is almost like novation of
               a contract. Further, to rule otherwise the Court would almost have to
               try to get into the parties’ heads to figure out what exactly they were
               trying to accomplish by the second division of property. Finally, it
               just seems like the equitable thing to do, to rule in favor of the
               Plaintiff. The Court hereby orders that the relief sought by the
               Defendent should not be granted and directs the Plaintiff to prepare
               an Order reflecting the same.

An order was entered on February 3, 2000 dismissing Ms. Hurst’s Complaint to Enforce Judgment.

       Ms. Hurst’s sole issue on appeal is whether the Trial Court erred in dismissing the Complaint
to Enforce Judgment.

       Because the issue on appeal deals directly with two marital dissolution agreements, and their
enforcement, we first address the contractual nature of such agreements as found in Gray v. Estate
of Gray, 993 S.W.2d 59, 63 (Tenn. Ct. App. 1998):

               A marital dissolution agreement is essentially a contract between a
               husband and wife in contemplation of divorce proceedings. See
               Towner v. Towner, 858 S.W.2d 888 (Tenn. 1993). “A property
               settlement agreement between a husband and wife is ‘within the
               category of contracts and is to be looked upon and enforced as an
               agreement, and is to be construed as other contracts as respects its
               interpretation, its meaning and effect.’” Bruce v. Bruce, 801 S.W.2d
               102, 105 (Tenn. App. 1990) (quoting Matthews v. Matthews, 24
               Tenn. App. 580, 593, 148 S.W.2d 3, 11-12 (1940)).

        We review the Trial Court’s findings of fact de novo upon the record of the proceedings
below, with a presumption of correctness “unless the preponderance of the evidence is otherwise.”
Tenn. R. App. P. 13(d). Conclusions of law are reviewed de novo with no presumption of
correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996). Because contract
interpretation involves a legal matter rather than a factual matter, the interpretation of a contract is
not entitled to a presumption of correctness under Tenn. R. App. P. 13(d). The Trial Court’s
interpretation of the contract did not depend on disputed facts; therefore, it is our job to review the
contract and make our own determination of its meaning. Hillsboro Plaza Enterprises v. Moon, 860
S.W.2d 45 (Tenn. Ct. App. 1993).



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        Ms. Hurst argues that the Trial Court should have enforced MDA #1 regardless of her
remarriage and second divorce from Mr. Hurst, and the language of paragraph 7 in MDA #2. She
further argues that according to the decision in Clothier v. Clothier, 232 S.W.2d 363 (Tenn. Ct. App.
1950), she is entitled to the property in MDA #1, as that case implies that if a property settlement
is not considered alimony, it can not be avoided by a remarriage. Additionally, Ms. Hurst asserts
that the property settlement in MDA #1 was final and unchangeable as a contractual agreement
according to Vanatta v. Vanatta, 701 S.W.2d 824 (Tenn. Ct. App. 1985). Finally, Ms. Hurst argues
that the personal property in MDA #2 does not include the property in MDA #1; as the property in
MDA #1 is not marital property, but became separate property upon entry of the decree approving
MDA #1.

        Mr. Hurst contends that only MDA #2 governs the distrbution of their personal property and
that the language in paragraph 7 of MDA #2 is clear and unambiguous. Mr. Hurst argues that
because Ms. Hurst never received the property in MDA #1, and remarried and divorced Mr. Hurst
a second time, she is no longer entitled to that property per MDA #2. Mr. Hurst argues that Ms.
Hurst is attempting to insert parol evidence and is asking the Court to determine the mindset of the
parties when they agreed to the provisions in MDA #2.

        “A divorce decree which incorporates a marital dissolution agreement is to be construed like
other written instruments, with the court seeking to determine the apparent purposes in the minds
of the draftsmen and the trial court,” Kensinger v. Conlee, an unreported opinion of this Court, filed
in Jackson, on July 30, 1999. See Livingston v. Livingston, 429 S.W.2d 452 (1967). In construing
both MDA #1 and MDA #2 as contracts, we are compelled to follow the well established laws for
the interpretation of contracts as stated in Rainey v. Stansell, 836 S.W.2d 117, 118-119 (Tenn. Ct.
App. 1992):

               The cardinal rule for interpretation of contracts is to ascertain the
               intention of the parties and to give effect to that intention consistent
               with legal principles. Bob Pearsall Motors, Inc. v. Regal
               Chrysler-Plymouth, Inc., 521 S.W.2d 578 (Tenn.1975). A primary
               objective in the construction of a contract is to discover the intention
               of the parties from a consideration of the whole contract. Mckay v.
               Louisville & N.R. Co., 133 Tenn. 590, 182 S.W. 874 (1916); Burns
               v. Temperature Control Co., 52 Tenn.App. 51, 371 S.W.2d 804
               (1962). In construing contracts, the words expressing the parties'
               intentions should be given their usual, natural and ordinary meaning,
               Taylor v. White Stores, Inc., 707 S.W.2d 514 (Tenn.App.1985), and
               neither party is to be favored in the construction. Ballard v. North
               American Life Ins. Co., 667 S.W.2d 79 (Tenn.App.1983).
                       The court, at arriving at the intention of the parties to a
               contract, does not attempt to ascertain the parties' state of mind at the
               time the contract was executed, but rather their intentions as actually
               embodied and expressed in the contract as written. Petty v. Sloan,

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               197 Tenn. 630, 277 S.W.2d 355 (1955); Sutton v. First Nat'l Bank of
               Crossville, 620 S.W.2d 526 (Tenn.App.1981). All provisions of a
               contract should be construed as in harmony with each other, if such
               construction can be reasonably made, so as to avoid repugnancy
               between the several provisions of a single contract. Bank of
               Commerce & Trust Co. v. Northwestern Nat'l. Life Ins. Co., 160
               Tenn. 551, 26 S.W.2d 135, 68 A.L.R. 1380 (1930).

In so doing, we first turn to the language of MDA #1. At the end of their first marriage, Mr. and Ms.
Hurst divided the pertinent property in the following manner:

               4. Husband shall pay to wife one-half of the husband’s Alcoa
               Retirement Plan having Alcoa pay same to wife. Said sum shall be
               paid as soon as possible, and husband shall execute whatever papers
               are necessary in order for Alcoa to release one-half of the Retirement
               Fund to wife.
               5. Wife shall receive One Hundred Percent (100%) of the stock at
               Merrill Lynch.
               6. Wife shall receive one-half of all sums received by husband as a
               result of the Alcoa Profit Sharing Program since the parties separated
               in October 1990.

We find that the language of paragraphs 4, 5, and 6 is clear and unambiguous as to what Ms. Hurst
was to receive from the first divorce. We take note of the fact that paragraph 4 states that “husband
shall execute whatever papers are necessary in order for Alcoa to release one-half of the Retirement
Fund to wife” as an argument has been made by Mr. Hurst that Ms. Hurst has failed to do anything
with respect to obtaining the aforementioned property. The responsibility for distribution to Ms.
Hurst clearly is that of Mr. Hurst and his attorney.

       It is undisputed by both parties that at the time of the first divorce and until the execution of
MDA #2, Ms. Hurst had a contractual right to receive the property as set forth in paragraphs 4, 5,
and 6 of MDA #1. We find that she retains this right. The Supreme Court in Blackburn v.
Blackburn, 526 S.W.2d 463, 465 (Tenn. 1975), stated:

                An agreement between a husband and wife on matters outside the
                scope of the legal duty of child support during minority, or alimony
                in futuro over which the court also has continuing statutory power to
                modify, retains its contractual nature, although included in the decree
                of the court, and is enforceable in the same manner as other contracts.

MDA #1 is a contract and is to be enforced as it is written. That being stated, the next matter for
determination is whether Ms. Hurst’s remarriage and second divorce, and the language in paragraph
7 of MDA #2 effectively negates that contract. Paragraph 7 of MDA #2 states in pertinent part:

                                                  -5-
               7. The parties have previously divided all other personal property,
               furniture, and furnishings, and each party shall receive all items
               which are in their respective possession at the time of entry of the
               Final Decree in this cause.

        The question remains as to whether MDA #2 disposes of the same property as paragraphs
4, 5, and 6 of MDA #1. Mr. Hurst argues that since the property from MDA #1 was not actually in
Ms. Hurst’s possession at the “time of entry of the Final Decree in this cause,” she is no longer
entitled to it. While MDA #2 does not specifically mention those assets found in paragraphs 4, 5,
and 6 of MDA #1, it does not exclude them either. The parties obviously disagree as to the
interpretation of paragraph 7 of MDA #2 with respect to the definition of “personal property” and
the meaning of “each party shall receive all items which are in their respective possession at the time
of entry of the Final Decree in this cause.”

        The mere fact that two parties disagree about the interpretation of a specific provision of a
contract does not create an ambiguity. Cookeville Gynecology & Obstetrics, P.C. v. Southeastern
Data Sys., Inc., 884 S.W.2d 458 (Tenn. Ct. App. 1994), Oman Constr. Co. v. Tennessee Valley
Authority, 486 F.Supp. 375 (M.D. Tenn. 1979). “A contract is ambiguous only when it is of
uncertain meaning and may fairly be understood in more ways than one. A strained construction
may not be placed on the language used to find ambiguity where none exists.” Farmers-Peoples
Bank v. Clemmer, 519 S.W.2d 801, 805 (Tenn. 1975). In keeping with the above-stated rule, we find
that paragraph 7 of MDA #2 is unambiguous, however, we disagree with the Trial Court’s
interpretation of that paragraph.

        The language used in a contract must be taken and understood in its plain, ordinary, and
popular sense. Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578
(Tenn.1975), Guardian Life Ins. Co. v. Richardson, 129 S.W.2d 1107 (1929). While the language
of paragraph 7 in MDA #2 may be unambiguous, it is evident that the parties disagree as to its
interpretation. It is therefore incumbent upon this Court to determine the plain, ordinary meaning
of the terms of paragraph 7. A corollary rule of construction to ordinary plain meaning that is also
applicable is found in Parker v. Provident Life and Accident Insurance Company, 582 S.W.2d 380,
383 (Tenn. 1979):

               when the courts have repeatedly interpreted certain words in legal
               documents as having a particular meaning and the drafters of such
               legal documents continue to use such words with knowledge of the
               interpretation placed upon them by the courts it will be assumed that
               the draftsmen in using such words did so knowingly with the
               intention that such judicial gloss will be placed upon them.

        We therefore turn to the particular meaning of the term “property” with respect to the
division of a marital estate as found in a Marital Dissolution Agreement. Dividing a marital estate
necessarily begins with the classification of property as either separate or marital property. Herrera

                                                 -6-
v. Herrera, 944 S.W.2d 379 (Tenn. Ct. App. 1996). Separate and marital property are defined by
statute as set forth in T.C.A. 36-4-121 in pertinent part:

               36-4-121 Distribution of marital property. (b) For purposes of this
               chaper: (1)(A) “Marital property” means all real and personal
               property, both tangible and intangible, acquired by either or both
               spouses during the course of the marriage up to the date of the final
               divorce hearing or up to the date of the legal separation hearing
               unless equity would require another valuation date and owned by
               either or both spouses as of the date of filing of a complaint for
               divorce or complaint for legal separation, except in the case of
               fraudulent conveyance in anticipation of filing and including any
               property to which a right was acquired up to the date of the final
               divorce hearing, or the date of legal separation hearing unless equity
               would require another valuation date, and valued as of a date as near
               as reasonably possible to the final divorce hearing date or the date of
               the legal separation hearing.

                (2) "Separate property" means:
                  (A) All real and personal property owned by a spouse before
               marriage;
                (B) Property acquired in exchange for property acquired before the
               marriage;
                 (C) Income from and appreciation of property owned by a spouse
               before marriage except when characterized as marital property under
               subdivision (b)(1);

        The property awarded to Ms. Hurst in MDA #1, more specifically, one-half of the Alcoa
Retirement Plan, one hundred percent (100%) of the stock at Merrill Lynch, and and one-half of all
sums received by husband from Alcoa Profit Sharing Program became the separate property of Ms.
Hurst upon the execution of MDA #1. Mr. and Ms. Hurst signed an MDA which is a legal binding
contract. The property at issue then became separate property Ms. Hurst brought into her second
marriage. It is irrelevent that it was Mr. Hurst that Ms. Hurst married following her first divorce.
Had Ms. Hurst married Mr. Hurst following a divorce from someone other than Mr. Hurst, there
would be no argument as to whom the property she received from her first divorce belonged. An
argument that Ms. Hurst somehow waives her right to property that became hers in her first divorce
simply because she married the same man twice is without merit.

        In conclusion, we note the memorandum opinion of the Trial Judge speaks of “the equitable
thing to do.” In this regard, we point out the following maxim of equity and part of the text found
in Gibson’s Suits in Chancery, 5th Ed., § 54:



                                                -7-
               § 54. Equity Regards That as Done Which Ought to Be Done. - In a
               Court of Chancery ought to be becomes is; and whatever a party
               ought to do, or ought to have done, in reference to the property of
               another, will, ordinarily, be regarded as done; and the rights of the
               parties will be adjudicated as though, in fact, it had been done.
               (emphasis in original)

Paragraph 7 of MDA #2 provides that “each party shall receive all items which are in their respective
possession at the time of entry of the Final Decree in this cause.” In equity, the property referred to
in paragraphs 4, 5 and 6 of MDA #1 was the separate property of Ms. Hurst, its transfer to her would
“be regarded as done,” and hence this property would be considered as in Ms. Hurst’s “possession
at the time of entry of the Final Decree” in the second divorce.

        For the foregoing reasons the judgment of the Trial Court is reversed and the cause remanded
for collection of costs below which are, as are costs of appeal, adjudged to the Appellee, Eddie Joe
Hurst, Sr.



                                               _________________________________________
                                               HOUSTON M. GODDARD, PRESIDING JUDGE




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