                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    MARCH 2000 Session

          SUSAN TRABUE HOWARD v. ROBERT MARK HOWARD

               Direct Appeal from the Chancery Court for Williamson County
               No. 15223-R4; The Honorable J. Russell Heldman, Chancellor



                    No. M1999-00670-COA-R3-CV - Filed August 31, 2000


This appeal arises from a dispute over a contractual provision in a Marital Dissolution Agreement
(“MDA”) between the parties. Susan Trabue Howard (“Mother”) filed a Petition for Enforcement
of Contractual Obligation, alleging that Robert Mark Howard (“Father”) had failed to abide with a
provision in the MDA providing that Father would be responsible for Daughter’s “related costs of
education.” The court below found in favor of Mother, holding that Father was responsible for
all of Daughter’s expenses for the time specified in MDA. Father appeals.

  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Reversed and
                                        Remanded

ALAN E. HIGHERS, J., delivered the opinion of the court, in which CRAWFORD, P.J., W.S., and
FARMER , J., joined.

Michael E. Terry, Nashville, for Appellant

Virginia Lee Story, Franklin, for Appellee

                                             OPINION

The parties were divorced in 1983 by a final decree that incorporated both a property settlement
agreement and an agreement regarding the support and maintenance of the parties’ two children. The
agreement contained an Educational Provision providing that Father would be responsible for the
cost of tuition, room and board, books and other related costs associated with the children’s
undergraduate education. The provision limited Father’s responsibility to the first of either a period
of four consecutive years following each child’s graduation from high school or each child’s twenty-
third birthday.1 At the time this cause of action arose, only the parties’ eldest Daughter was attending
college, Daughter is now twenty-three.2

        In August 1997, Mother filed a Petition for Contempt and Modification of the agreement in
the Williamson County Chancery Court. Mother alleged that Father owed more than nine thousand
dollars in expenses pursuant to the Educational Provision.3 Mother later filed an Amended Petition
for Enforcement of Contractual Obligation. Both of these petitions sought money under the “related
costs of education” clause contained in the Educational Provision. Mother later supplemented her
previous itemized list of expenses to include various other costs. This resulted in an expense list that
totaled slightly more than thirty-five thousand dollars.4

       At trial, Father presented undisputed proof that he had paid all of Daughter’s tuition, room
and board, and books for the periods while she was enrolled in college.5 In addition, Father had
provided Daughter with additional cash totaling nearly fifteen hundred dollars. In the period covered
under the Educational Provision, Daughter attended four different colleges and took off several
semesters.

        Mother acknowledged Father’s contributions, but admitted that she sought reimbursement
for everything that she had spent on Daughter since Daughter’s graduation from high school. These
expenses included a thirteen thousand dollar car bought by Mother for Daughter, car insurance and
maintenance expenses, Daughter’s traffic tickets and gasoline expenses, cash in the amount of nearly

         1
            The Edu cational Provision states as fo llows:
          Mr. Howard acknowledges that it is his desire that the minor children of the parties attend a college or
university of their choice subsequent to graduation from high school. In accordance therewith , Mr. Ho ward ag rees to
be individually responsible for the cost of tuition room and board, books and other relate d costs asso ciated with each
child’s undergrad uate educa tional process . In order to limit the exte nt o f M r. Howa rd’s oblig ation here under, it is
agreed that his financial responsibility under this paragraph shall not exceed the cost which would be incurred were the
children to attend the Univer sity of Ten nessee in Knox ville. This is not to suggest that it is the desire of the parties that
said children a ttend said university, but the cost were the children to attend the University of Tennessee shall be utilized
as a guideline in placing a limitation on Mr. Howard’s responsibility hereunder. The parties agree that Mr. H oward shall
be individually responsible for the undergraduate educational process of each of the minor children to cover a period
of four (4) conse cutive yea rs after their resp ective high school g raduatio n or until each child becomes twenty-three (23)
years of age, wh ichever event first occurs . (emphasis added)

         2
             The parties’ yo ungest d aughter is not attending college and therefore not subject to the educational provision.
         3
           Mother also asked for a n increase in child supp ort that was later granted by an agreed order of the parties.
The inc rease in ch ild suppo rt is not at issue o n appea l.
         4
           The total listed on the statement was actually $39,421. Although this figure is the result of a mathematical
error, the co urt used th is figure in aw arding re lief to Mo ther.
         5
            Father did not pay room and board money to Daughter for the period between August 1995 and May 1996.
During this period Daughter was working full time and attending college at night (a total of 9 credit hours). Daughter
either lived with Mother or maintained an apartment during this period. Father did pay for Daughter’s tuition and books
and provided her with $630 in cash.

                                                              -2-
six thousand dollars for money given to Daughter by Mother regardless of whether Daughter was
or was not enrolled in college when the payments were made, approximately three thousand dollars
to pay off Daughter’s credit card bills, clothes, furniture, and moving expenses totaling nearly six
thousand dollars, and other miscellaneous expenses.6

        The court found for Mother in the amount of thirty-nine thousand four hundred and twenty-
one dollars, holding that the abovementioned expenses fell under the “other related costs” clause in
the Educational Provision.7 In explaining his ruling, the Chancellor stated that Father had agreed to
be financially responsible for the undergraduate educational process of Daughter for four
consecutive years of college or until she became twenty-three years of age. According to the
Chancellor, Father’s duty continued until Daughter reached the age of twenty-three, because she had
not attended college for a consecutive period of four years. Father appeals.8

        On appeal, Father asserts that the trial court erred in its interpretation of the Educational
Provision. In particular, Father asserts that the trial court’s decision effectively makes Father
responsible for all expenses incurred on Daughter’s behalf, regardless of whether or not she was
enrolled in college. In addition, Father claims that the trial court erred in holding that Father’s
financial responsibility toward Daughter automatically continued until Daughter reached the age of
twenty-three. Mother seeks attorney’s fees incurred at both the trial level and on appeal.


                                                   ANALYSIS

        The standard of review for a non-jury case is de novo upon the record. Wright v. City of
Knoxville, 898 S.W.2d 177, 181 (Tenn. 1995). There is a presumption of correctness as to the trial
court’s factual findings, unless the “preponderance of the evidence is otherwise.” TENN . R. APP . P.
Rule 13(d). For issues of law, the standard of review is de novo, with no presumption of correctness.
Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996). In the case at bar, the only
issue involves the trial court’s interpretation of the Educational Provision in the MDA. The
interpretation of a written agreement is a matter of law and not of fact, therefore, our review is de
novo on the record with no presumption of the correctness of the trial court's conclusions of law.
Union Planters Nat'l Bank v. American Home Assurance Co., 865 S.W.2d 907, 912 (Tenn.
App.1993).




         6
         These miscellaneous expenses included a dress and gift for a wedding attended by Daughter, money for
Daughter’s entertainment, and mon ey for a trip to Florida made by Daugh ter.
         7
          At the time he made his ruling, the judge apparently encouraged Father to appeal, stating that the ruling was
inequitable.
         8
         Father filed several post trial motions to alter or amend the ruling and seeking a new trial. Only Father’s
motion to stay was granted.

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         A marital dissolution agreement is essentially a contract between a husband and wife in
contemplation of divorce proceedings. See Gray v. Estate of Gray, 993 S.W.2d 59, at 63 (Tenn. Ct.
App. 1998) citing Towner v. Towner, 858 S.W.2d 888 (Tenn.1993). Therefore, the provisions in
a MDA are subject to the same rules of interpretation as those that apply to contracts. The cardinal
rule for interpretation of contracts is to ascertain the intention of the parties from the contract as a
whole and to give effect to that intention consistent with legal principles. Winfree v. Educators
Credit Union, 900 S.W.2d 285, 289 (Tenn. Ct. App.1995); 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). In the absence of fraud or mistake, a contract must be interpreted and
enforced as written, even though it contains terms which may seem harsh or unjust. Heyer-Jordan
& Assocs. v. Jordan, 801 S.W.2d 814, 821 (Tenn.App.1990).

        An ambiguity in a contract is characterized as doubt or uncertainty arising from the
possibility of the same language being fairly understood in more ways than one. Hillis v. Powers,
875 S.W.2d 273, 276 (Tenn. App.1993). However, the parties to a contract cannot create an
ambiguity where none exists. Edwards v. Travelers Indemnity Co., 201 Tenn. 435, 300 S.W.2d 615,
617-618 (1957). "Where there is no ambiguity, it is the duty of the court to apply to the words used
their ordinary meaning and neither party is to be favored in their construction." Heyer-Jordan &
Assoc. v. Jordan, 801 S.W.2d 814, 821 (Tenn. App.1990).


                                     A. “Other Related Costs”

         With the foregoing principles in mind, we will examine the MDA. In particular, the case
below centers on the interpretation of two sentences found in the Educational Provision of the
parties’ MDA. The first sentence reads as follows: “In accordance therewith, Mr. Howard agrees
to be individually responsible for the cost of tuition room and board, books and other related costs
associated with each child’s undergraduate educational process” (emphasis added). Essentially,
Mother argues that “other related costs” means “all costs” whether or not they are actually related
to Daughter’s education. According to Mother, Father is responsible for every penny spent on
Daughter, regardless of whether Daughter was enrolled in college at the time the expenses were
incurred and regardless of the purpose of the expenses. We do not agree.

         In accordance with the principles stated above, we must consider both the parties’ intention
when making this agreement and the actual meaning of “other related costs.” Clearly, at the time
this agreement was made, Father intended to provide Daughter with the opportunity to attend
college. We are unpersuaded that Father intended to bear all expenses Daughter incurred during this
period, regardless of their origin. In addition, “other related costs” must be given its usual, natural,
and ordinary meaning. This Court can neither broaden nor restrict the meaning of those words.
Accordingly, we find it impossible to construe the words to mean Father is financially responsible
for all of Daughter’s expenses. While every struggling undergraduate would no doubt enjoy the use
of a car, extra money to take trips, and a constantly updated wardrobe, these things are by no means


                                                  -4-
“other related costs” essential to the educational process. Accordingly, we find that the trial court
erred in holding Father responsible for these and several other questionable expenses. Therefore,
this issue is remanded to the trial court with the intent that the court review each expense to
determine whether it is a cost related to the educational process.


                                          B. Time Period

        We now turn to the remaining sentence at issue in the Educational Provision of the MDA.
This sentence states: “The parties agree that Mr. Howard shall be individually responsible for the
undergraduate educational process of each of the minor children to cover a period of four (4)
consecutive years after their respective high school graduation or until each child becomes twenty-
three (23) years of age, whichever event first occurs” (emphasis added). The court below interpreted
this provision to mean Father’s financial responsibility to Daughter does not end unless she remains
in college for four consecutive years or until she becomes twenty-three. The trial court found that
since Daughter’s college attendance had not been continuous, the time period did not run and
Father’s responsibility automatically terminated when Daughter reached twenty-three. We do not
agree.

        We find that the parties intended to provide for Daughter’s education for four consecutive
years, with the triggering event being Daughter’s graduation from high school and first enrollment
in college. The parties divorced in 1983, and Daughter did not graduate from high school until May
1994, some eleven years later. She first enrolled in college in August 1994. Therefore, at the latest,
Father’s financial responsibility for Daughter’s educational expenses terminated in August 1998.
The time period continued to accrue regardless of whether or not Daughter was actually attending
college. The age provision simply represented a cap on Father’s obligation so that, in no event,
would he be obligated beyond the child’s twenty-third birthday. Father could not have known when
the agreement was signed how long it might require for the children to graduate from high school,
and the agreement protected him from potentially prolonged delay in the children’s educational
expenses. This interpretation is consistent with both the intent of the parties as well as the ordinary
and natural meaning of the words. Accordingly, the trial court is reversed on this issue.


                                          Attorney’s Fees

        Mother’s request for attorney’s fees incurred both on the trial level and on appeal is hereby
denied. Without an express agreement to pay attorney’s fees for enforcement of a contract, such
fees are not recoverable. Pinney v. Tarpley, 686 S.W.2d 574, at 581 (Tenn. Ct. App. 1984) citing
Stringfield v. Hirsch, 94 Tenn. 425, 29 S.W. 609 (1895); Goings v. Aetna Cas. & Sur. Co., 491
S.W.2d 847 (Tenn. Ct. App.1972).




                                                 -5-
                                        CONCLUSION
       For the foregoing reasons, the decision of the trial court is hereby reversed and remanded.
Costs of appeal are taxed one half to Appellant, Robert Mark Howard, and one half to Appellee,
Susan Trabue Howard, for which execution may issue, if necessary.




                                                     ___________________________________
                                                     ALAN E. HIGHERS, JUDGE




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