                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                JANUARY 26, 2001 Session

          PATRICIA JOAN MORA v. GILBERTO RAMIREZ MORA

                 Direct Appeal from the Chancery Court for Shelby County
                No. D17028-3; The Honorable D. J. Alissandratos, Chancellor



                     No. W1999-02483-COA-R3-CV - Filed June 4, 2001


This case involves a dispute stemming from the parties’ divorce in 1991. The divorce decree
provided that Ms. Mora and the parties’ adult daughter could live in the marital home for thirty
months following the divorce, at which time the home was to be put on the market for sale and the
proceeds divided. After the thirty month period expired, Mr. and Ms. Mora attempted to settle the
dispute concerning the marital home. The parties each executed documents, and a dispute arose as
to which document embodied the parties’ intentions. The trial court ruled on the parties’ settlement
dispute, and the court also appointed Ms. Mora as the adult daughter’s guardian and ordered that Mr.
Mora provide support for his daughter. For the following reasons, we affirm in part and reverse in
part.

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

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

Paul E. Lewis, Millington, for Appellant

Charlie R. Ashford, Memphis, for Appellee

                                            OPINION

                                  Facts and Procedural History

        This case began in the trial court with the filing of a complaint for separate maintenance by
Patricia Joan Mora (Ms. Mora) on October 14, 1988. The trial court entered a decree of separate
maintenance, award of support, and division of marital property on July 10, 1990. The court’s order
provided that Ms. Mora and Pamela Mora, the parties’ disabled adult daughter, were to stay in the
family home for thirty months beginning July 1, 1990. After thirty months, the residence was to be
put on the market for sale. The trial court’s order also provided that Mr. Mora would pay Ms. Mora
rehabilitative alimony in the amount of $500.00 per month for a period of sixty months. The trial
court’s order granting a final decree of divorce was filed on September 6, 1991.

         Gilberto Ramirez Mora (Mr. Mora) filed a petition for scire facias and modification in the
trial court on October 14, 1993. Mr. Mora alleged that Ms. Mora had not complied with the terms
of the final decree because she continued to reside in the marital home without placing the home on
the market for sale. As a result, Mr. Mora alleged that he was suffering financially since he was to
receive one half of the proceeds from the sale of the marital home. The parties eventually attempted
to settle the matter on their own.

        In their attempt to settle the matter concerning the marital home, the parties each signed
agreements. Mr. Mora signed an agreement prepared by Ms. Mora’s attorney that purported to settle
all matters in controversy regarding the marital home. Mr. Mora also drafted an agreement, without
the assistance of counsel, that Ms. Mora signed. Mr. Mora claims that his document settles not only
the claims regarding the marital home, but all future court proceedings between the two parties
concerning child support, child custody, contempt petition, modification of rehabilitative alimony,
and any and all other matters.

        Ms. Mora filed a Petition to Enforce Settlement Contract on January 8, 1997, to settle the
dispute as to which document embodied the parties’ agreement. The trial court accepted Ms. Mora’s
agreement and rejected Mr. Mora’s agreement.

        At a later hearing, the trial court also ruled on Ms. Mora’s petition for custody, support, and
fees regarding the parties’ forty-five year old disabled child. After examining doctors’ reports and
hearing testimony from the parties and the guardian ad litem, the trial court concluded that the
parties’ adult child was permanently impaired and could not reasonably care for or support herself.
The court also appointed Ms. Mora as Guardian of the Person and the Estate of Pamela Mora, and
ordered Mr. Mora to contribute support for his adult daughter.

       Mr. Mora appeals and raises the following issues, as we perceive them, for our review:

1) Whether the trial court erred in assuming jurisdiction to enforce a settlement contract of the
parties after the divorce decree had been entered.
2) Whether the trial court erred in accepting the Appellee’s agreement as valid and rejecting the
Appellant’s agreement.
3) Whether the trial court erred in assuming jurisdiction for custody and support of the parties’ adult
child.
4) Whether the trial court erred in finding the parties’ adult child to be totally and permanently
disabled.
We will examine each issue in turn.




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                                         Standard of Review

        When a civil action is heard by a trial judge sitting without a jury, our review of the matter
is de novo on the record, accompanied by a presumption of correctness of the findings below. See
Foster v. Bue, 749 S.W.2d 736, 741 (Tenn. 1988); T.R.A.P. 13(d). We may not reverse the findings
of fact made by the trial judge unless they are contrary to the preponderance of the evidence. See
Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996). This presumption of correctness,
however, does not attach to the trial judge’s legal determinations or the trial court’s conclusions that
are based on undisputed facts. See NCNB Nat’l Bank v. Thrailkill, 856 S.W.2d 150, 153 (Tenn. Ct.
App. 1993).

                                          Law and Analysis

        First, Appellant claims that the trial court erred in assuming jurisdiction to enforce a
settlement contract of the parties after the divorce decree had been entered. The parties were
attempting to settle their differences regarding the marital home. The trial court had ordered in the
divorce decree that Ms. Mora and the parties’ disabled adult daughter could live in the marital home
for a period of thirty months. After the thirty month period, Ms. Mora was to sell the home and
divide the proceeds with Mr. Mora. Apparently, Ms. Mora did not place the marital home on the
market for sale upon the expiration of the thirty month period. As a result, the parties attempted to
settle their differences. As part of this settlement attempt, the parties each signed documents
purporting to settle their differences regarding the marital home. When a dispute arose as to which
document embodied the parties’ agreement, Ms. Mora filed a Petition to Enforce Settlement
Contract. The trial judge determined that Ms. Mora’s agreement was the valid agreement. Mr. Mora
cites Penland v. Penland, 521 S.W.2d 222 (Tenn. 1975), and he argues that the trial court erred in
assuming jurisdiction to determine which settlement contract to enforce because the parties’
agreement was contractual in nature and was not subject to the court’s jurisdiction. We do not read
Penland to stand for such a proposition. We find that the trial court had jurisdiction to enforce the
settlement contract entered into by the parties in this particular case. The jurisdiction of a trial court
in a divorce proceeding must continue until the final disposition of the marital property. To hold
otherwise would strip the trial courts of jurisdiction to enforce common orders, such as the one in
the case at bar, allowing a party to reside in the marital home for a specified period before the home
is sold and the proceeds are divided.

        Next, Appellant claims that the trial court erred in accepting Ms. Mora’s agreement as valid
and rejecting Mr. Mora’s agreement. As noted above, both parties entered into settlement
agreements concerning the marital home. The document drafted by Mr. Mora stated in part that
“[u]pon the transfer and settlement of my half of the home at 8502 Quito Rd, to Patricia Mora all
future court pending hearings have been resolved and dropped by the two parties.” Mr. Mora claims
that his document dismisses not only the claims regarding the marital home, but all future court
proceedings concerning child support, child custody, contempt petition, modification of
rehabilitative alimony, and any and all other matters. In contrast, Ms. Mora’s document, which was
drafted by her attorney, states in relevant part “that all pending litigation regarding claims against


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each other arising from the property at 8502 Quito Road, Millington, Tennessee shall be
compromised, settled and said pending litigation be dismissed.” Ms. Mora contended that this
agreement only involved proceedings surrounding the marital home. The trial court agreed with Ms.
Mora and found that the parties only intended to settle their differences regarding the marital home.
Mr. Mora claims on appeal that the trial court erred in accepting Ms. Mora’s agreement as valid and
rejecting his agreement.

        Interpretation of a written contract is a matter of law, rather than a matter of fact. See
Hamblen County v. City of Morristown, 656 S.W.2d 331, 335-36 (Tenn. 1983); Standard Fire Ins.
v. Chester O'Donley & Assocs., Inc., 972 S.W.2d 1, 5-6 (Tenn. Ct. App. 1998). The purpose of
interpreting a written contract is to ascertain and to give effect to the contracting parties' intentions.
See Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn. 1975);
Gredig v. Tennessee Farmers Mut. Ins. Co., 891 S.W.2d 909, 912 (Tenn. Ct. App. 1994). In the case
of written contracts, these intentions are reflected in the contract itself. Thus, the search for the
contracting parties' intent should focus on the four corners of the contract, see Whitehaven
Community. Baptist Church v. Holloway, 973 S.W.2d 592, 596 (Tenn. 1998); Hall v. Jeffers, 767
S.W.2d 654, 657-58 (Tenn. Ct. App. 1988), and the circumstances in which the contract was made.
See Penske Truck Leasing Co. v. Huddleston, 795 S.W.2d 669, 671 (Tenn. 1990); Pinson & Assocs.
Ins. Agency, Inc. v. Kreal, 800 S.W.2d 486, 487 (Tenn. Ct. App. 1990).

        In the absence of fraud or mistake, courts should construe contracts as written. See Frank
Rudy Heirs Assocs. v. Sholodge, Inc., 967 S.W.2d 810, 814 (Tenn. Ct. App. 1997); Whaley v.
Underwood, 922 S.W.2d 110, 112 (Tenn. Ct. App. 1995). The courts should accord contractual
terms their natural and ordinary meaning, Evco Corp. v. Ross, 528 S.W.2d 20, 23 (Tenn. 1975), and
should construe them in the context of the entire contract. See Wilson v. Moore, 929 S.W.2d 367,
373 (Tenn. Ct. App. 1996); Rainey v. Stansell, 836 S.W.2d 117, 119 (Tenn. Ct. App. 1992). The
courts should also avoid strained constructions that create ambiguities where none exist. See
Hillsboro Plaza Enters. v. Moon, 860 S.W.2d 45, 47-48 (Tenn. Ct. App. 1993).

        The courts may not make a new contract for parties who have spoken for themselves, see
Petty v. Sloan, 277 S.W.2d 355, 359 (Tenn. 1955), and may not relieve parties of their contractual
obligations simply because these obligations later prove to be burdensome or unwise. See Atkins
v. Kirkpatrick, 823 S.W.2d 547, 553 (Tenn. Ct. App. 1991). Thus, when called upon to interpret a
contract, the courts may not favor either party. See Heyer-Jordan & Assocs., Inc. v. Jordan, 801
S.W.2d 814, 821 (Tenn. Ct. App. 1990).

         Upon review of the agreements drafted by the two parties, we agree with the trial court that
Ms. Mora’s document accurately reflects the parties’ agreement. Ms. Mora’s document is very clear
in that it states “that all pending litigation regarding claims against each other arising from the
property at 8502 Quito Road, Millington, Tennessee shall be compromised, settled and said pending
litigation be dismissed.” On the other hand, the language in Mr. Mora’s document does not support
his allegation that the parties intended to settle all their disputes arising out of the divorce.
Therefore, this issue is without merit.


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         Third, Mr. Mora alleges that the trial court erred by assuming jurisdiction for custody and
support of the parties’ adult child. The concept of subject matter jurisdiction, as opposed to
territorial jurisdiction, involves the court's authority to hear a particular type of case. See Meighan
v. U.S. Sprint Comm. Co., 924 S.W.2d 632, 639 (Tenn. 1996); Landers v. Jones, 872 S.W.2d 674,
675 (Tenn. 1994); Turpin v. Conner Bros. Excavating Co., 761 S.W.2d 296, 297 (Tenn. 1988),
overruled on other grounds by Five Star Express, Inc. v. Davis, 866 S.W.2d 944, 950 (Tenn. 1993).
Subject matter jurisdiction can only be conferred by statute or constitution. See Landers, 872 S.W.2d
at 675; Turpin, 761 S.W.2d at 297; Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977). The issue of
subject matter jurisdiction is not waivable and thus may be raised at any time, regardless of whether
any objection to the assertion of jurisdiction was made at the trial court level. See State ex rel. Dep't
of Social Servs., 736 S.W.2d 84, 85 n.2 (Tenn. 1987); Scales v. Winston, 760 S.W.2d 952, 953
(Tenn. Ct. App. 1988). Any order entered by a court without subject matter jurisdiction is a nullity
and is therefore unenforceable. See Scales, 760 S.W.2d at 953; Ward v. Lovell, 113 S.W.2d 759,
760 (Tenn. Ct. App. 1937).

        We note the case of Kilby v. Kilby, No. 03A019712-CH00549, 1999 WL 76065, at *1 (Tenn.
Ct. App. Jan. 28, 1999). In Kilby, the parties had a severely disabled child that required constant
care. See id. at *1. After the child reached majority, the trial court ordered the mother to have
custody of the adult child, and the court ordered father to pay support for his adult child. See id. at
*2. On appeal, the court of appeals reversed the ruling of the trial court and held that “the Trial
Court had no jurisdiction to hear this matter and to modify the physical custody of Shannon under
the agreed divorce decree. Rather, the procedures contained in T.C.A. 34-13-101, et. seq., which
address conservatorship[s], should have been followed.” Id. at 5-6.

         Also, in Scott v. Scott, No. 03A01-9708-CH-00305, 1999 WL 39506, at *1 (Tenn. Ct. App.
Jan. 29, 1999), the eastern section dealt with another similar case. In Scott, the parties were involved
in a custody dispute over a twenty year old disabled daughter. See id. at *1. The trial court held that
the child custody statutes were inapplicable to the daughter because she was a legal adult. See id.
Additionally, the trial court held that the proper avenue to address the child’s needs was a
conservatorship proceeding. See id. On appeal, the eastern section of this court upheld the ruling
of the trial court. See id. at *4.

         This court also dealt with the issue now before us in Day v. Gatewood, No. 02A01-9805-CV-
00141, 1999 WL 269928, at *1 (Tenn. Ct. App. April 30, 1999). In Day, the father was ordered by
the trial court to provide support for the parties’ minor son. See id. at *1. After the parties’ son
reached the age of majority, he was involved in an automobile accident. See id. When the son was
twenty years of age, his mother filed a petition seeking a continuation of father’s child support
obligation. See id. Mother alleged that son had sustained severe brain damage as a result of the
automobile accident, rendering him totally disabled and unable to support or care for himself. See
id. The trial court entered an order requiring Mr. Day to provide support for the parties’ adult son.
See id. On appeal, Mr. Day alleged that the trial court did not have subject matter jurisdiction to



                                                  -5-
order him to continue to support the parties’ adult son. See id. After reviewing Kilby and Scott, we
held the following:

                     Based on the foregoing, we find that the trial court in the instant case
                     was without subject matter jurisdiction when it entertained Mrs.
                     Gatewood’s 1993 petition for continuation of Mr. Day’s obligation to
                     pay child support. Consequently, we agree with Mr. Day that the
                     consent order subsequently entered by the trial court is void and
                     unenforceable. Like the court in Scott, we think that Tennessee’s
                     conservatorship statutes provide an appropriate avenue for addressing
                     the needs of the parties’ adult child.

Day, 1999 WL 269925, at *5.

        In the instant case, consistent with the Kilby and Scott decisions and our decision in Day, we
must hold that the trial court had no subject matter jurisdiction to appoint a guardian for Pamela or
to order Mr. Mora to contribute support for Pamela. Therefore, we find that the trial court’s Order
for Custody, Support, and Fees is void and unenforceable. We find that the conservatorship statutes1
provide an appropriate avenue to address Pamela’s needs. If a court having jurisdiction in
conservatorship proceedings 2 determines that Pamela is in need of a conservator, the person
appointed as her conservator may then request an order requiring Mr. Mora and/or Ms. Mora to
contribute to Pamela’s support.3 In light of our holding that the trial court lacked subject matter
jurisdiction to appoint a guardian and to order support, we see no need to address Mr. Mora’s fourth
issue.




          1
              See T E N N . C ODE A N N . § 34-13-101 et. seq. (1996 & Supp. 200 0).

          2
             An action for the appointment of a conservator may be commenced by the filing of a petition in a court with
probate jurisdiction o r in any other co urt of record in the alleged d isabled pe rson’s coun ty of residence . See T E N N . C O D E
A N N . § 34-13-101 (1996).

          3
           While we recognize the possibility that a conservator may be appointed in the future, we make no finding as
to whether Pamela is disab led such that she needs assistance in man aging her affairs.

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                                           Conclusion

        For the reasons stated above, we affirm in part, reverse in part and remand this case for
further proceedings consistent with this opinion. Costs on appeal are taxed one-half to Mr. Mora and
one-half to Ms. Mora, for which execution may issue if necessary.




                                                      ___________________________________
                                                      ALAN E. HIGHERS, JUDGE




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