             IN THE COURT OF APPEALS OF TENNESSEE
                        AT NASHVILLE
                               January 8, 2003 Session


                JANET RYAN HILMAN V. RANDOLPH HILMAN

                   Appeal from the Circuit Court for Davidson County
                     No. 86D-2102 Muriel Robinson, Judge


                 No. M2002-00898-COA-R3-CV - Filed July 31, 2003


This appeal arises from the trial court’s denial of a contempt petition brought to enforce
the provision in a marital dissolution agreement regarding the father’s obligation to pay
one-half of child’s uncovered medical expenses. The trial court found the petitioning
mother failed to present sufficient evidence of which expenses were medical and covered
by the marital dissolution agreement and the petitioning mother acted unilaterally in
incurring these extraordinary charges for treatment of the minor child. We affirm the trial
court.

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

DON R. ASH, SJ, delivered the opinion of the court, in which BEN H. CANTRELL , PJ,
MS, and PATRICIA J. COTTRELL, J, joined.

James Harris, III, Nashville, Tennessee, for the appellant, Janet Ryan Hilman.

Matthew F. Mayo, Nashville, Tennessee, for the appellee, Randolph Hilman.

                                       OPINION

                                       Background

       Ms. Janet Ryan and Randolph Hilman divorced January 16, 1987 on the grounds

of irreconcilable differences. The final divorce decree incorporated the parties’ marital

dissolution agreement [“MDA”] granting Ms. Ryan custody of their minor son. Mr.

Hilman agreed to pay child support as well as “one-half (1/2) of any and all uncovered

medical expenses including hospital, doctor, dental, psychological or psychiatric,

orthodontic and optometry expenses.”


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       At the time of their divorce, the Hilman’s son was two years old. At age seven,

he was diagnosed as suffering from Attention Deficit Hyperactivity Disorder. Other

behavioral disorders were later discovered. Over a period of years, the son’s treatment

required him to see psychologists, psychiatrists, and other doctors as well as taking

several medications. After the divorce, Mr. Hilman did little to remain involved in his

son’s life or decisions regarding medical treatment for the young man.

       Sadly, the behavioral problems continued and the son’s psychiatrists and doctors

searched for alternative treatments to expensive inpatient hospitalization. The mental

health professionals recommended a therapeutic wilderness program called Second

Nature in Utah. The son attended this wilderness program throughout the summer of

1998. Ms. Hilman applied for payment by her insurance carrier for this program, but she

was denied. Regardless, the son went to Utah and stayed in the program. Later, the son

participated in two other intensive therapeutic residence programs, Positive Impact and

Three Springs. Second Nature, Positive Impact and Three Springs cost several thousand

dollars each and coverage was denied by the insurance carrier for these programs. Ms.

Ryan never consulted Mr. Hilman prior to their son attending these therapeutic programs

but did send regular medical bills and statements listing charges incurred at the various

programs to him. Ms. Ryan is claiming uncovered medical care totaling $47,437.40 of

which Mr. Hilman would owe half or $23,718.70.

       In December 1999, Mr. Hilman questioned the charges for the therapeutic

programs and refused to pay his portion. On November 14, 2001, Ms. Ryan filed a

petition for contempt against Mr. Hilman for failure to pay one-half of the uncovered




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medical expenses. The contempt petition was heard March 14, 2002.               The court

dismissed the petition.

       Ms. Ryan raised two issues in her appeal:

       1. Whether the trial court erred by finding Mr. Hilman not liable under the MDA

           for expenses unilaterally incurred by Ms. Ryan.

       2. Whether the court erred by requiring Ms. Ryan to present specific evidence

           regarding exact charges for medical treatment at the therapeutic psychiatric

           programs.

                                       Discussion

       We review the lower court’s factual determinations de novo with a presumption

of correctness and will not reverse those findings of fact unless they are contrary to the

preponderance of the evidence. Randolph v. Randolph, 937 S.W.2d 817, 819 (Tenn.

1996); Tenn. R. App. P. 13(d). Regarding the lower court’s legal conclusions, our review

is de novo with no presumption of correctness. S. Constructors, Inc. v. Loudon County

Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001); Tenn. R. App. P. 13(d).

           I. Was Mr. Hilman liable under the Marital Dissolution Agreement for
                   expenses unilaterally incurred by Ms. Ryan

        First, we view this issue as one of contract interpretation. A husband and wife
divorcing on grounds of irreconcilable differences must enter into a marital dissolution
agreement deciding a variety of issues including property division, parenting
responsibilities, spousal support and child support. A divorce decree is to be construed
like other written instruments. Branch v. Branch, 249 S.W.2d 581 (Tenn. Ct. App.1952).
A decree must be constructed in light of the pleadings, particularly the prayer of the bill
and the apparent purposes in the mouth of the draftsman and the court. Livingston v.
Livingston, 429 SW2d 452, 456 (Tenn. Ct. App. 1967)
        Ms. Ryan argues the court erred by requiring her to seek approval from Mr.
Hilman or the court before enforcing the MDA as incorporated into the final divorce
decree. Essentially, Ms. Ryan disputes the court’s finding she acted unilaterally in
incurring these expenses without consulting either Mr. Hilman or the court. In ruling
from the bench, the lower court stated



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                  [T]here was no joint decision on Three Springs. Ms. Ryan
                  cannot unilaterally contract to a program of this magnitude
                  without the consent of the other party, especially when it
                  costs $4,200 a month, unilaterally, and then claim plane
                  tickets, counselors fees, and things of that nature, which he
                  has objected to, which this court feels he is justified in.
                  You cannot do that and add it up and expect him to pay one
                  half, under the proof that she brings before the court. She
                  made that decision by herself. If she had come into court
                  there is a way to do that, to show this child has an extra
                  ordinary expense here, and that you need a contribution.
                  You can’t just go and sign up and spend this money and
                  then by the way, at a later time, send somebody a bill for
                  $18,000. You cannot do that.

         The cardinal rule for contract interpretation is to ascertain the parties’ intentions

from the contract as a whole and to give effect to that intention consistent with legal

principals. Rainey v. Stansell, 836 S.W.2d 117, 118 (Tenn. Ct. App. 1992). 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, 516 (Tenn. Ct. App.

1985). To arrive at that intent, it is appropriate to consider the circumstances of the

parties at the time the contract was formed. Hamblen County v. City of Morristown, 656

S.W.2d 331 (Tenn. 1983). When the Hilman’s entered into the MDA, their son was only

two years old.         He had not yet displayed symptoms of his severe psychological

problems.1 Their son was first diagnosed as ADHD when he was seven. Neither party

disputes their lack of contemplation of their son’s development of severe behavioral and

emotional problems.

         It is also well established in this jurisdiction an enforceable contract must, among

other elements, result from a meeting of the minds and must be sufficiently definite to be


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 The court clearly expressed its finding in this regard stating, “[t]he problem is this child has got a serious
mental illness. There’s no doubt about it. The problem is it wasn’t diagnosed at the time that these parties
were divorced…there must have been a need for it at that time.”


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enforced. Johnson v. Central National Ins. Co. of Omaha, Neb., 356 S.W.2d 277, 281

(Tenn. 1961). The contemplated mutual assent and meeting of the minds cannot be

accomplished by the unilateral action of one party. Batson v. Pleasant View Utility

District, 592 S.W.2d 578, 582 (Tenn. Ct. App. 1979); Balderacchi v. Ruth, 256 S.W.2d

390, (Tenn. Ct. App. 1953). At the time these parties entered into the MDA, there was

no meeting of the minds in regard to such extraordinary expenses.

       Ms. Ryan’s argument the MDA granted her the authority to unilaterally bind Mr.

Hilman fails because under Tennessee law, every contract contains an implied duty of

good faith and fair dealing in the performance and enforcement of the contract. See

Wallace v. National Bank of Commerce of Chattanooga, Inc., 938 S.W.2d 684, 686

(Tenn. 1996); Winfree v. Educators Credit Union, 900 S.W.2d 285, 289 (Tenn. Ct. App.

1995). In Woods v. Woods, 2000 Tenn. App. LEXIS 584, Judge David Farmer writing

for the Western Section of the Court of Appeals stated:

       [W] hen considering whether the parties have complied with
       this duty of good faith and fair dealing, the court must ascertain
       the intention of the parties as determined by a reasonable and
       fair construction of the language of the contract.

       We view Ms. Ryan’s actions regarding these expenses in breach of her implied

duty of good faith and fair dealing.

       She did not have the right to unilaterally bind Mr. Hilman under well-settled

contract law principals. If they could not come to an agreement, Ms. Hilman should have

sought the court’s instruction on resolving the disagreement. Regardless of Mr. Hilman’s

lack of involvement in his son’s life, he deserved notice and the opportunity for input or

court involvement in these unanticipated treatment decisions if he was obligated to pay




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half of the cost. When these costs arose, Ms. Ryan should have discussed the various

recommended treatment options with Mr. Hilman.

       She interpreted the MDA as granting her plenary authority to decide how to care

for her son. Understandably, Ms. Ryan sought the best healthcare for her troubled son.

Her judgment reflects a caring parent who wants the best care available, regardless of the

cost. The MDA does not grant her such unbridled authority.

           II.Was Ms. Ryan required to present specific evidence regarding exact
                                charges for medical treatment.

       Finally, Ms. Ryan argues the lower court misinterpreted the MDA. The lower

court narrowly interpreted “medical expenses” in the MDA to mean treatment sessions

by a psychiatrist or psychologist. Ms. Ryan argues this interpretation was the court’s sua

sponte substitution of “its own medical judgment for that of the physicians, psychiatrists,

and psychologists.” Mr. Hilman argues the therapeutic programs were “extraordinary” in

nature and not medical expenses as contemplated in the parties MDA. Based upon

testimony presented at trial, we do not disagree with the lower court’s determination.

       Ms. Ryan also argues the disputed therapy programs were covered medical

expenses because they were “prescribed and/or recommended” by doctors, psychiatrists

and psychologists.   While the record is not entirely clear, there is ample proof the

alternative programs at issue were presented to Ms. Ryan as one of various treatment

options. Importantly, none appears to have been specifically ordered by any of their

son’s treating physicians. Dr. Bermudas said in his deposition he did not “prescribe” any

specific program “in the traditional sense of the word.” He recommended a “mental

health intervention” as an alternative to a number of potential treatment options. Dr.

Bermudas said regarding differentiation between “prescribing” and “recommending”



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treatment options, he envisioned his role as one of guiding the patient through the

decision making process rather than ordering a specific program or a specific treatment

plan.

        This point is important because Ms. Ryan broadly interpreted the scope of what

expenses were covered by the term “medical expenses” in the MDA. Ms. Ryan included

airfare to the treatment programs and the charges of an “educational consultant” who

selected the programs. Additionally, she included the entire cost of the therapeutic

program itself whether part of the program was educational in nature or strictly

therapeutic. The record is clear Ms. Ryan merely tallied up the total expenses due and

divided them by two. We view Ms. Ryan’s interpretation of the MDA is untenable and

affirm the lower court.

                                     Conclusion

        For the reasons set out above, the order denying Appellant’s Petition for

Contempt is AFFIRMED. Costs of the appeal are assessed to Appellant.



                                                  ______________________________
                                                  DON R. ASH, SP . J.




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