           IN THE COURT OF APPEALS OF TENNESSEE
                      AT NASHVILLE


MARY SHEILA SUTOSKI
HENNIGAN,
                            )
                            )
                                              FILED
    Plaintiff/Appellee,     )   Appeal No.     May 26, 1999
                            )   01A01-9807-CH-00380
vs.                         )                Cecil Crowson, Jr.
                            )               Appellate Court Clerk
                                Bedford Chancery
ALVIN HENNIGAN, JR.,        )   No. 12628
    Defendant/Appellant     )


             APPEAL FROM THE CHANCERY COURT
                   FOR BEDFORD COUNTY
                 AT NASHVILLE, TENNESSEE

         THE HONORABLE TYRUS COBB, CHANCELLOR




ROBERT TODD JACKSON
222 Second Avenue North
Suite 419
Nashville, TN 37201

ATTORNEY FOR THE DEFENDANT/APPELLANT

FRED C. STATUM, JR.
2200 First Union Tower
150 Fourth Avenue North
Nashville, TN 37219

ATTORNEY FOR THE PLAINTIFF/APPELLEE


                   AFFIRMED AND REMANDED




                            PATRICIA J. COTTRELL, JUDGE

CONCUR:

CANTRELL, J.
KOCH, J.
                                 OPINION
      Appellant, Alvin Hennigan, (hereinafter referred to as Father) appeals the

trial court’s order requiring him to pay his daughter’s college expenses pursuant

to the Property Settlement and Child Custody Agreement entered into with

Appellee, Mary Sheila Sutoski Hennigan, (hereinafter referred to as Mother) at

the time of their divorce and a later amendment. For the reasons stated

hereinafter, we affirm the judgment of the trial court.

      The parties were divorced on February 24, 1984. At the time of their

divorce they had three minor children, ages 5, 9 and 12. The divorce was based

on irreconcilable differences. The parties entered into a Property Settlement and

Child Custody Agreement which was approved by the court and incorporated

into the Final Decree granting divorce. The agreement contained a provision

regarding the children’s college education which stated:


             The husband further agrees that he will pay for
             reasonable educational expenses, as child support for
             the children of the parties, incurred by said children
             through the obtaining of an undergraduate degree by
             each of said children, or upon each of said children
             reaching twenty two years of age, whichever occurs
             sooner.

             Wife agrees to aid husband in the payment of the
             college educational expenses of the parties’ children
             commensurate with her financial condition at the time.

      In 1994, the parties were again in court to clarify their respective financial

duties regarding support for their children, including their children’s college

educations. On December 7, 1994 the parties entered into an agreed order which

contained the following provision:


             Respondent has previously agreed to and embodied by
             Court Order shall continue to be responsible for the
             reasonable college expenses of the parties’ children,

                                        2
             Christopher Matthew Hennigan and Meghann
             Hennigan, as set forth in the prior Court Order.
             Specifically respondent shall continue to provide
             room, board and tuition and Petitioner by virtue of
             prior court order requiring her to assist financially
             based upon her income shall provide and pay for all
             other necessary expenses related to college education
             of the parties’ children.

      The parties’ youngest daughter, Meghann, was an exceptional student in

high school, graduated with high honors from a private school in New York in

1996, and applied to a number of prestigious universities. She was accepted to

the University of Notre Dame in South Bend, Indiana, and began school there in

the fall of 1996. Father paid only a portion of the room, board, and tuition for

the years 1996-1997 and 1997-1998. It is undisputed that the total cost of room,

board, and tuition at Notre Dame, at the time, was in excess of $16,000 per

semester. It is also undisputed that Father’s income during the time period in

question ranged from $343,690 to $583,793.

      Mother sued to enforce the terms of the 1994 agreed order. Father argued

that he should not have to pay the full amount of room, board, and tuition for his

daughter’s education at Notre Dame. He insisted that a court order to pay for an

adult child’s higher education is unenforceable, even where the order is based

upon an agreement between the parties. In the alternative, he argued that the use

of the words “reasonable college expenses” was so ambiguous as to render the

order and the underlying agreement unenforceable. The trial court ruled in favor

of Mother and ordered the defendant to pay the difference between what he had

already contributed and the full amount of his daughter’s room, board, and

tuition for the years 1996-97 and 1997-98, which was calculated to be $18,227.

Further, the trial court ordered that Father pay for his daughter’s two remaining

years at Notre Dame. This appeal by Father followed. We affirm the ruling of



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the trial court.

                                        I.

       Father argues that the agreement that he pay for his child’s college

education is unenforceable because he has no legal duty to support a child who

is over 18 years of age and has graduated from high school. 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 (Tenn. 1975); Garey v. Garey,

482 S.W.2d 133 (Tenn. 1972); Jones v. Jones, 503 S.W.2d 924 (Tenn. App.

1973).

       However, a party to a divorce may by agreement obligate himself or

herself beyond the support duties imposed by law. Such provisions in an

agreement are enforceable as contractual obligations even though the agreement

is incorporated into a divorce decree. Penland v Penland, 521 S.W.2d 222

(Tenn. 1975); Blackburn v. Blackburn, 526 S.W.2d 463, 465 (Tenn. 1975).

Parties to a divorce proceeding “should be able to obligate themselves by

agreement beyond what the courts could order them to do as a matter of law. “

Holt v. Holt, 751 S.W.2d 426, 428 (Ten. App. 1988). 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. 02-A-01-9604-CV-00073,

1997 WL 194852*3, (Tenn. App. April 22, 1997) (No Tenn. R. App. R.11

application filed).

         The courts in Tennessee have consistently held that a parent’s agreement

to provide for college education expenses beyond the age of a child’s majority

is enforceable as a contractual obligation and is a “valid contractual area for

husband and wife in the throes of divorce.” Penland v. Penland, 521 S.W.2d


                                        4
222, 224 (Tenn. 1975). An agreement which imposes upon a party a duty to pay

future educational expenses of children beyond high school level, and which

necessarily envisions an obligation beyond the age of majority, 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." Id. at 224-25. See also Duggan v. Bohlen, No. 01-A-01-

9611-CV-00535, 1997 WL 379177*2 (Tenn. App. July 9, 1997) (No Tenn. R.

App. R.11 application filed).

      Father argues that the wording of the 1984 agreement which characterizes

the college education expenses as “child support” renders the agreements

unenforceable.1 This argument is without any basis. First, the two agreements

clearly embody Father’s promise to pay for his children’s college education.

Second, even if the agreements obligated Father to pay post-majority support,

not college expenses, they would be enforceable. A party may agree to provide

child support beyond that required by law and modifiable by the court, and such

agreement is enforceable by the court as any other contract. Penland, 521

S.W.2d 222 (Tenn. 1975); Boutin v. Boutin, No. 01-A-01-9601-CH-00014, 1996

WL 694122 (Tenn. App. Dec. 5, 1996) (No Tenn. R. App. R.11 application

filed); Dorris v. Dorris, No. 01-A-01-9304-CV-00170, 1993 WL 380778 (Tenn.

App. Sept. 29, 1993) (No Tenn. R. App. R.11 application filed).

      Therefore, we find that Mr. Hennigan’s agreement to pay for Meghann’s

room, board, and tuition is enforceable as a contractual matter.




      1
       Because the 1994 agreed order references the obligations set forth in the
1984 settlement agreement and order, Father argues the 1994 order is also
unenforceable since it is a clarification of the “child support.”

                                       5
                                        II.

      Next, Father attempts to avoid the effect of his prior commitment based

on the use in the agreements of the phrase “reasonable college expenses.” He

submits that the term “reasonable college expenses” is sufficiently vague and

ambiguous to void the parties’ agreements for want of mutuality and failure of

a meeting of the minds.

      The trial court's interpretation of the provision of the agreements, being

contractual in nature, is not entitled to a presumption of correctness under Tenn.

R. App. P. 13(d) since contract interpretation involves legal rather than factual

inquiry. Hillsboro Plaza Enterprises v. Moon, 860 S.W.2d 45, 47 (Tenn. App.

1993). Our task is to review the contracts anew and make our own independent

determination of the agreements’ meaning. Id. at 47. However, this Court is not

at liberty to make a new contract for parties who have spoken for themselves nor

are we at liberty to relieve parties from their contractual obligations simply

because these obligations later prove to be burdensome or unwise. Id.

      Father’s argument that the word “reasonable” is vague and renders an

agreement void militates against well-settled principles of contract law, and

appellant has failed to provide any authority to this court in support of his

position. It cannot be said that the use of the term “reasonable” creates an

ambiguity which makes an agreement unenforceable. In fact, under Tennessee

law contracts are subject to an implied condition of reasonableness, even where

the term “reasonable” is not used in the contract. Moore v. Moore, 603 S.W.2d

736, 739 (Tenn. App. 1980); Hurley v. Tenn. Farmers Mut. Ins. Co., 922 S.W.2d

887 (Tenn. App. 1995). In fact, in Cagle v. Cagle, No. 02-A-01-9710-CH-

00265, 1998 WL 80219*3 (Tenn. App. Nov. 18, 1998), (No Tenn. R. App. R.11

application filed), this court agreed with the father that his agreement to pay his


                                        6
son’s college expenses was subject to the implied condition of reasonableness.

      It has been held in Tennessee that “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); Empress Health and Beauty Spa, Inc. v. Turner, 503

S.W.2d 188 (Tenn. 1973).

      In making his “ambiguity” argument, Father overlooks the 1994 agreed

order wherein the parties more specifically defined their respective obligations.

He agreed to pay room, board, and tuition as the “reasonable college expenses”

of Christopher and Meghann. Further, the clear and specific language of the

1994 order refutes Father’s contention that Mother should be required to pay

some portion of Meghann’s room, board, and tuition as part of her agreement to

aid Father in the payment of college expenses. Mother’s obligation, as well as

Father’s, is set out in the 1994 order with reference to specific items to be paid

by each. Father complains that he should have been allowed to conduct

discovery regarding Mother’s financial situation. We agree with the trial court

that Mother’s finances were irrelevant to the issue in this lawsuit: whether Father

had fulfilled his obligations.

      Therefore, we further find that the agreements herein are not ambiguous

and that Mr. Hennigan’s commitment to pay Meghann’s room, board, and tuition

is enforceable.




                                        7
                                       III.

      On appeal, Father’s only complaint about the reasonableness of the room,

board, and tuition expenses at Notre Dame appears to be his opinion that the

two-thirds he has paid is reasonable and that Mother should be required to pay

the remainder. Unfortunately for Mr. Hennigan, that is not the agreement he

made. Had he intended to limit the total amount of his obligation or to obligate

himself only for a percentage of the total cost, Father could have done so in the

agreements he signed. See Cagle v. Cagle, 1998 Tenn. App. WL 80219*3 (“If

father had wanted to be responsible for his son’s college expenses only upon the

son attending a public university, the MDA provision could have been drafted

to include such limiting language.”) Instead, he limited his obligation by

committing himself to pay only room, board, and tuition. Any other expenses

are to be paid by Mother.

      There was evidence presented at trial which is relevant to a consideration

of reasonableness. Father’s adjusted gross income for 1994 was $483,730; for

1995 it was $583,793; for 1996 it was $343,690. Father also testified to other

valuable assets he owns. While Father testified that his current monthly

expenses exceed his monthly income, the trial court was not persuaded that the

college expenses of his daughter were unreasonable in light of his ability to pay.

Neither are we.

      Father was aware that his daughter was considering colleges as expensive

or more expensive than Notre Dame. Almost eight months before the December

1994 agreed order was entered, Father received a letter dated April 25, 1994,

from Mother about college expenses for Chris and Meghann. In relevant part,

that letter provided:




                                        8
             And certainly I will not allow Meghann, who will be
             graduating at the top or close to the top of her class, to
             be concerned about whether or not you will be paying
             for her education. If you are limiting her choice of
             schools based on tuition, this is the time to talk to her
             so she won’t plan on attending a top school. She’s
             already receiving information from colleges because
             she is such an excellent student. I’m sure she has
             mentioned some possible choices. I know that I have
             in the past mentioned schools like Vanderbilt,
             Georgetown, and Duke to you. (Emphasis added.)

      Father was aware that Meghann was visiting some prestigious universities

in anticipation of her application and enrollment, including Duke and

Georgetown. Father himself took Meghann to visit Vanderbilt University in

May of 1996. Vanderbilt’s tuition, room and board are slightly more expensive

than Notre Dame’s. By May 1996, Father knew Meghann had been admitted to

Notre Dame. At no time, until August of 1996 (shortly before Meghann was to

leave for college) did Father tell his daughter he did not intend to pay for her full

room, board, and tuition at Notre Dame.

      The trial court found that “the cost of Meghann Hennigan’s Notre Dame

University room, board, and tuition are reasonable expenses” as contemplated

by the earlier agreements and orders. This finding is entitled to a presumption

of correctness, and the evidence does not preponderate against it. We affirm the

trial court’s finding that the room, board, and tuition expenses are reasonable.

                                        IV.

      Based on the foregoing, the order of the trial court is affirmed. The costs

are taxed to the Appellant. The case is hereby remanded to the trial court for

whatever further proceedings that may be necessary.




                                         9
                              ________________________________
                              PATRICIA J. COTTRELL, JUDGE


CONCUR:


________________________________
BEN H. CANTRELL, PRESIDING
JUDGE, MIDDLE SECTION



________________________________
WILLIAM C. KOCH, JR., JUDGE




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