                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                              February 9, 2006 Session

      JOHN L. MEDEARIS v. BONNIE BAUMGARDNER (STOLOFF)

                Direct Appeal from the Chancery Court for Hamilton County
                    No. 66485    Hon. W. Frank Brown, III., Chancellor



                    No. E2005-01785-COA-R3-CV - FILED MARCH 27, 2006


The mother sued to enforce Agreement with the father to pay college expenses for adult child of the
parties. The Trial Court refused to enforce the terms of the Agreement on the equitable grounds of
unclean hands and the lack of cooperation and fair dealings by the mother. We affirm.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which D. MICHAEL SWINEY ,
J., and SHARON G. LEE, joined.

Pamela R. O’Dwyer, and Randall D. Laramore, Chattanooga, Tennessee, for appellant.

Donna L. Pierce, Chattanooga, Tennessee, for appellee.



                                           OPINION


               The parties, father John and mother Bonnie, were divorced on March 7, 1988, and
the Final Judgment adopted and incorporated their Marital Dissolution Agreement by reference. The
MDA stated that the mother was to have custody of the parties’ minor child, James Henry Medearis
(Jimmy), d.o.b. 3/24/86, and the father was required to pay semi-monthly child support payments
of $260.00. The MDA also provides:

               Husband’s liability for such child support payment shall cease upon the happening
               of whichever of the following events shall first occur:

               a.      Death of Husband;
               b.      Death or marriage of child; or
               c.      Child obtains the age of 18 years; provided however, Husband agrees to
                       continue child support payments to Wife until the child obtains 22 years of
                       age so long as the child continues to live with Wife on a daily basis and is
                       enrolled as a full-time student in pursuit of a recognized license, diploma or
                       degree. So long as Husband is paying at least fifty percent of the child’s
                       annual tuition, books, room and board, Husband will have no obligation to
                       directly pay Wife any child support.

                In 2000, the father filed a Petition for Contempt and to Modify the Final Decree. The
Petition alleged that the mother had interfered with the father’s visitation rights, and allowed Jimmy
to disregard the visitation schedule. The father sought injunctive relief and mediation, asking the
Court to order the mother to cooperate with the visitation schedule. The mother responded with a
counter-claim for increased child support.

                The Court conducted a hearing on June 26, 2000, including an interview with Jimmy
in chambers, in the presence of the attorneys. In that interview, Jimmy opined he did not have a
good relationship with his father, that he and his father did not communicate because the father
would not listen, and that he would be ok with the Court telling the father to leave him alone.
Further, that his father had “taken him to court” which made him angry, and basically expressed his
desire to have nothing to do with his father.

                The Court entered an Order on July 24, 2000, and found that to enforce the visitation
at that point would be “disastrous” and would further impair the father/son relationship. The Court
found that counseling was necessary, and ordered that all parties should attend counseling, and that
the visitation schedule would be suspended pending further orders of the court. Both parties were
ordered to attend parenting classes, and the father’s Motion for Injunctive Relief was denied.

                On January 2, 2002, the Court entered an Order stating that both parties had filed
certificates showing their attendance at a parenting class, and also stating that the father had
voluntarily increased his child support payments. The Court stated “It appears that this case, in part
due to the child’s age and feelings, must be resolved by the parties and not by judicial fiat.” The
Court then dismissed both parties’ petitions without prejudice, and ordered the parties to continue
to work with each other and their son to improve the father-son relationship.

                 On August 18, 2004, the mother filed a Motion seeking to enforce the MDA
provisions as related to child support and college expenses. In the father’s Response, he stated that
he had ceased paying child support payments in May 2004 when the child graduated from high
school, having turned 18 in March of 2004. He asserted that he had no information that the child
was attending college, and the mother continued to interfere with his relationship with Jimmy, and
that he had not seen Jimmy since the last court hearing. Further, that the mother’s interference
justified relieving his future duty of support under the MDA.
                 The Court conducted a trial on June 6, 2005, wherein the parties and Jimmy testified.


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Following trial, the court issued a Memorandum Opinion and Order, wherein the Court stated that
“the law is clear that parties’ agreements applicable to children’s post-emancipation support and
education are treated and handled pursuant to contract law and not divorce law.” The Court denied
the mother’s request for contempt and stated that the case was “one of the saddest and most tragic
cases faced by this court”. The Court credited the father’s testimony that the mother told him during
the divorce that he would not have to pay support if he would agree not to see the child. The Court
stated the father testified his relationship with Jimmy began to deteriorate soon thereafter, and Jimmy
would not visit. The mother stated that she let Jimmy decide whether to visit. The Court found that
the father went to a counselor, but the mother did not and the father sent gifts, cards, money and
letters to Jimmy to try to keep the relationship alive, but Jimmy would then leave messages telling
the father he wanted no contact. The Court found that the father had not seen Jimmy since their last
hearing in 2000, and Jimmy blamed everything on the father and accepted no responsibility.

                The Court found that with regard to child support that Jimmy wanted nothing to do
with his father, but still wanted his money. The Court discussed the case law in Tennessee where a
parent’s influence over the child’s relationship with the other parent was a factor in change of
custody, and recognized the policy that a child’s relationship with a non-custodial parent was very
important. The Court found that it was clear that the mother had no use for the father and didn’t
want him around or involved, and wanted to be free of him. The Court found that Jimmy grew up
in this environment and it affected how he felt about his father.

                The Court then noted that in Tennessee, every contract had an implied standard of
good faith and fair dealing, and that the MDA in this case provided for visitation, and the 2000 Order
provided that the parties would attend counseling, but the mother had failed to comply with both.
The Court found that a person who materially violates a contract could not then claim breach by the
other party. The Court held the mother had breached the implied duty of good faith and fair dealing,
and had also violated her duty to foster the other parent’s relationship with the child, and the father
was thus relieved of any further duty of support under the MDA. The Court also held that the mother
was guilty of unclean hands for failing to abide by the Court’s orders.

               The mother has appealed and raised these issues:

               1.      Did the Trial Court err in holding that there was a failure of consideration
                       in the Marital Dissolution Agreement?

               2.      Did the Trial Court err in holding that the mother violated the duty of good
                       faith and fair dealing when she took no action to impede visitation or
                       impair the son’s relationship with father?

               3.      Did the father waive his right to visitation and a relationship with the son
                       when he took no action to secure visitation and failed to void the
                       agreement after the court suspended visitation.



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              Our review of the Trial Court’s decision as to factual determination is de novo with
a presumption of correctness of the findings of fact by the Trial Court unless the evidence
preponderates otherwise. But our review of the Judge’s conclusions of law enjoy no such
presumption. Tenn. R. App. P. 13(d).

                The mother argues the Trial Court incorrectly held that there was a failure of
consideration to support the father’s post-emancipation support obligations under the MDA. The
Trial Court did mention a “failure of consideration”, but went on to explain that the main basis for
its holding was the mother’s violations of her duties under the contract, and that her breach relieved
the father of his further obligations.

               Both parties agree that a parent’s obligation to pay support post-majority is purely a
matter of contract in Tennessee, and is outside the parent’s duty of legal support during minority.
See Penland v. Penland, 521 S.W.2d 222 (Tenn. 1975). An agreement to pay support post-majority
will be enforced as any other written contract. See Hathaway v. Hathaway, 98 S.W.3d 675 (Tenn.
Ct. App. 2002). The parties also agree that the Chancellor was correct in holding that all contracts
carry with them a duty of good faith and fair dealing. Elliott v. Elliott, 149 S.W.3d 77 (Tenn. Ct.
App. 2004).


                 In ascertaining and giving effect to the parties’ intentions regarding the MDA, it is
clear that the Contract provided that the father would have liberal visitation with Jimmy, as set forth
in the visitation schedule, and that there would be a continuing and viable father/son relationship,
as the Trial Court found. The Trial Court, however, concluded that this relationship had deteriorated,
and that both son and mother were responsible. The evidence does not preponderate against this
factual determination. Tenn. R. App. P. 13(d). The evidence establishes the mother did not pressure
the child to go to visit the father, but instead, let a minor make those decisions. In the ensuing years,
the mother did not tell, ask, or encourage the child to visit or contact the father at all, and she did not
attend the counseling mandated by the Court after the 2000 hearing, and did not, as custodial parent,
ensure that Jimmy went to such counseling. The result was a complete breakdown in the father/son
relationship, and the Court properly concluded the father had not received all the benefits that he was
entitled to under the MDA, and further the mother had violated the implied duty of good faith and
fair dealing because she had impaired the father’s rights under the Contract.


                 The mother argues this finding is improper because visitation remained within the
Court’s control during the child’s minority, and the Court could have ordered that it take place. The
Court’s determination was not dependent simply on the failure of visitation, however, but was based
upon the mother’s complete disregard for the father/son relationship and the Court’s orders. Clearly,
a failure to visit cannot relieve a party of his/her legal duty to support a child during his minority.
See Hill v. Hill, 152 S.W.3d 543 (Tenn. Ct. App. 2004). The posture of this case, however, does not
deal with the legal duty of support during the child’s minority, rather with a contractual duty to
support an adult child who is in college.


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                As stated, the Contract must be interpreted and enforced as any other contract, and
is subject to the same defenses as any other contract.


                The Court found the mother failed to comply with the Court’s prior order regarding
counseling and working together to repair the relationship, which further evidenced her lack of good
faith and fair dealing, as well as subjecting her claim to the additional defense of unclean hands.
This latter doctrine has been utilized to “deny relief if the granting of the relief asked will, because
of the complained of activities of the litigant, produce an illegal or unjust result.” C.J.S. Equity,
§111. In this case, the Court invoked the doctrine of unclean hands due to the mother’s conduct
regarding the child’s relationship with the father, and her disregard of the Court’s prior order
regarding counseling.1 The evidence does not preponderate against this finding. Tenn. R. App. P.
13(d). It would be unjust to allow the mother to gain her requested relief from the Court when she
disregarded the Court’s prior order.


                While Jimmy is not a party to this action nor to the contract, he did nothing to mend
the relationship with his father, stating that he wanted nothing to do with him. His conduct as a
third-party beneficiary of this Contract can be taken into account in determining whether the father’s
obligation to continue to support him post-majority should be enforced. See Lopez v. Taylor, 2005
WL 3555700 (Tenn. Ct. App. Jan. 4, 2005)(“A beneficiary’s right against the promisor is subject to
any claim or defense arising from his own conduct or agreement”). Further, as the Trial Court
explained, other jurisdictions that recognize a legal duty of a parent to support an adult child in
college have held that the parent is excused from that duty when the child has repudiated his or her
relationship with that parent. See McKay v. McKay, 644 N.E.2d 164 (Ind. Ct. App. 1994); Hambrick
v. Prestwood, 382 So. 2d 474 (Miss. 1980); and Milne v. Milne, 383 Pa.Super, 177, 556 A.2d 854
(1989). .


                Next, the mother argues the evidence did not support the Trial Court’s factual
determination that the mother impeded the father’s relationship with Jimmy. As we noted, these
findings are reviewed de novo with a presumption of correctness. The Trial Court’s findings of fact
hinged on witness credibility issues, and the evidence does not preponderate against the Trial Court’s
findings.


               Finally, the mother argues that the father is estopped or has waived his right to a
relationship with the son, by failing to exercise his option to void the parties’ agreement as provided
by a provision in the MDA, and by failing to return to court to enforce visitation. The mother’s
argument regarding voiding the agreement was not raised before the Trial Court, and will not be
addressed for the first time on appeal. As to the father’s failure to return to court, the father


       1
        The mother argues in her brief that counseling was not mandated by the Trial Court after
the 2000 hearing, but the Order demonstrates that it was.

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explained that he felt this would be a dangerous move, given Jimmy’s anger over the 2000 hearing.
He explained that he was simply following the counselor’s advice, and sent letters, cards, gifts, and
called in an effort to continue the relationship, all to no avail. Both the counselor and the Trial Court
had opined that forcing Jimmy to go on visitation would be the wrong thing to do, and the father
thought he was in a classic Catch 22 situation.


                 “Waiver is defined as a voluntary or intentional relinquishment of a right.” American
Home Assurance Co. v. Ozburn-Hessey Storage Co., 817 S.W.2d 672, 678 (Tenn.1991). In this
situation, the father did not voluntarily or intentionally relinquish his right to a relationship with his
son. Likewise, estoppel requires a “promise which the promissor should reasonably expect to induce
action or forbearance of a definite and substantial character on the part of the promisee and which
does induce such action or forbearance is binding if injustice can be avoided only by enforcement
of the promise.” Alden v. Presley, 637 S.W.2d 862, 864 (Tenn.1982). Further, the promisee must
have reasonably relied on the promise. Id. There was no such promise nor reliance shown here.


                Since we are affirming the Trial Court’s Judgment it is unnecessary to address the
issue raised by the father.


              We affirm the Judgment of the Trial Court and remand, with the cost of the appeal
assessed to Bonnie Baumgardner (Stoloff).




                                                         _____________________________
                                                         HERSCHEL PICKENS FRANKS, P.J.




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