                      IN THE COURT OF APPEALS OF TENNESSEE
                                   AT JACKSON
                                         JANUARY 23, 2002 Session

                          ISHMAEL H. MACE v. PHYLLIS C. MACE

                         An Appeal from the Circuit Court for Shelby County
                        No. 130557 R.D.; The Honorable Karen Williams, Judge



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




ALAN E. HIGHERS, J.

                                             DISSENTING OPINION

         I respectfully dissent from the conclusion reached by the majority.

        Important to this case is the fact that the father and mother entered into a “Family Settlement
Agreement,” a fact that the majority appears to give only cursory attention. The Family Settlement
Agreement amounts to what we would consider a marital dissolution agreement in Tennessee. In
this agreement, the father consented to paying $1,200.00 per month in child support with no prorated
reduction in this amount as each child reached the age of majority. This continuing obligation would
not cease until the youngest child graduated from high school.

       The father’s decision to consent to paying the entire obligation amount after the two eldest
daughters reached majority and graduated from high school went beyond his general obligations
under Pennsylvania law.1 The father, however, takes no issue with the Pennsylvania decree and
proposes to pay all arrearage accumulated under that decree.

       Under Tennessee law, we would obviously enforce an agreement wherein a parent voluntarily
agreed to pay more than would be required under law for the support of his children. See Penland


         1
            In Pennsylvania, the obligation of a parent to support a child generally ceases upon the child reaching the
age of m ajority or w hen the ch ild gradua tes from high scho ol, whichever occurs later. Hanson v. Hanson, 625 A.2d
1212, 1214 (Pa. Super. Ct. 1993). The only exception to this rule, referenced in 23 P A . C O N S . S T A T . A N N . § 4321(3)
(2001), concerns pare nts of adults with p hysical or m ental im pairm ent. Hanson, 625 A.2d at 1214 . Accordingly, when
the father agreed to pay the entire obligation after the first two daughters reached the age of majority and graduated high
scho ol, he was agre eing to incu r obligation s abo ve the requisite am oun t.
v. Penland, 521 S.W.2d 222 (Tenn. 1975). The enforcement of the award, however, following a
petitioned increase in the obligation, would require further review. In Penland, our
supreme court noted the difference between agreed child support payments outlined in a marital
dissolution agreement that fulfilled a parent’s legal duties and those payments that went above and
beyond what would be considered mandatory. Id. at 224-25. Those agreed upon payments that
fulfill a parent’s legal obligation merge into the final divorce decree. Those payments above the
legal mandates, however, continue to retain a contractual nature even though “incorporated” into the
final divorce decree. Id. at 225.

         In the case sub judice, the majority holds that all payments agreed upon by the parties should
be considered merged with the Pennsylvania decree. Under Tennessee law, however, as stated
above, we treat the portions of an agreement that require a parent to make payments in excess of the
legal requirements to be of a contractual nature. Thus, I would hold that the portion of the payments
that the father agreed to pay after the eldest daughters became adults and graduated from high school
are mere contractual obligations and not modifiable parts of the decree. The majority, however, in
requiring the father to continue paying the entire additional $300.00 after the eldest daughters
reached the age of majority, in effect, impermissibly rewrote the father’s contractual obligations.2

        I would also hold that the agreement entered into between the parties should be enforced as
written. It is what the father voluntarily agreed to pay. However, the father did not agree to pay an
additional $300.00 per month after the first and second daughter reached the age of majority. That
amount was assessed to him by the state of Tennessee and, accordingly, that amount should be
subject to reduction as each of the daughters becomes an adult. I also note that under the reasoning
of the majority opinion, the father would have been entitled to no pro rata reduction even if the
Tennessee court had doubled or tripled the amount of the original award. This result does not appear
to me to be either fair or logical.

        I would grant the father a pro rata reduction in the $300.00 modification as each child
attained majority. The Pennsylvania court entered a decree which allowed no reduction in the sum
of $1,200.00 per month. I would enforce that decree.



                                                                      ___________________________________
                                                                      ALAN E. HIGHERS, JUDGE



          2
            The majority stresses the fact that the father did not allege that the $1,500.00 was above the child suppo rt
guidelines amou nt for one child. Com mon sense dictates, howe ver, that when the court increased the father’s
obligation s, the inc rease was made to brin g his o bligations in line w ith the guideline amo unt for all three o f the parties’
children. We find no reason to believe that with all three children under the age of eighteen at the time, the co urt w ould
have increased the amount of his obligations to a level commensurate with the amount due for only one child. From
my rev iew of the record, it appears painfully obvious that the court merely rewrote the contractual obligations of the
father.

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