                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                          Assigned on Briefs January 4, 2011

            TOMMY K. HINDMAN v. LOUISE HELEN HINDMAN

                  Appeal from the Chancery Court for Knox County
                   No. 134307-2    Daryl R. Fansler, Chancellor




               No. E2010-01052-COA-R3-CV - Filed February 11, 2011


Louise Helen Hindman (“Wife”) and Tommy K. Hindman (“Husband”) were divorced in
August of 1997, at which time the trial court approved a marital dissolution agreement (“the
MDA”) submitted by the parties. Relevant to the instant case, the MDA addressed future
medical and educational expenses for the parties’ minor child (“Son”). After Wife refused
to reimburse Husband in compliance with the pertinent provisions of the MDA, he filed a
petition seeking to have her held in contempt. The trial court ultimately ordered Wife to pay
$43,678. We affirm.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P. J., and D. M ICHAEL SWINEY, J., joined.

Christopher D. Heagerty, Knoxville, Tennessee, for the appellant, Louise Helen Hindman
(Dover).

James S. Sharp, Knoxville, Tennessee, for the appellee, Tommy K. Hindman.

                                        OPINION

                                   I. BACKGROUND

       The pertinent provisions of the MDA at issue are as follows:

       1. CHILD CUSTODY: The parties shall have joint custody of their minor
       child, Tommy K. Hindman, II (“T.K.”) born on November 12, 1987. The
parties shall consult with one another on all major decisions involving the
child’s health, general welfare, overall care and maintenance, and education.
Each shall make every effort to reside in close proximity to the child’s school.
Recognizing that the child has resided and developed extensive ties with Knox
County, neither party shall attempt to move from the jurisdiction of the Court
with the child, absent a court order modifying this provision.

2. VISITATION PLAN: The parties agree to a visitation plan as follows:

A. Weekly Schedule: The parties shall have alternating weeks of visitation
time with the minor child with the exchange to take place on Sunday evenings.
Each party shall have telephone access to the child on a 24 hour basis.

                                     ***

5. CHILD’S MEDICAL EXPENSES: The Husband shall maintain major
medical and hospitalization insurance on the parties’ minor child until said
child attains majority or his class graduates from high school, whichever is
later. All medical, pharmaceutical, orthodontic, optical, psychological and
dental expenses not covered by said insurance shall be borne by the Husband
until re-marriage of the Wife at which time all of the aforementioned medical
expenses will be paid equally. . . .

6. CHILD’S EDUCATIONAL EXPENSES: The parties agree that each shall
pay one-half (½) of the educational expenses of their child, including books,
tuition, room and board, as long as the child is making satisfactory progress in
school. This obligation applies to any education endeavor of the child that the
parties, as joint custodians, agree upon, including private elementary, middle
and high school and any college expenses, up to the cost of the University of
Tennessee. However, when the child reaches college level, the college fund
presently in existence at Morgan Keegan shall be used to satisfy his college
expenses prior to any contribution being required of either party. Any college
funds set aside in the future by either party, plus any income generated thereby,
shall be used to satisfy that party’s obligation to pay one-half (½) of education
expenses.

The existing educational fund with Morgan Keegan Brokerage shall remain
there with both parties as joint custodians of said account, pursuant to T.C.A.
§ 35-7-211, and both parties’ signatures will be necessary for withdrawal of
any funds unless either party is deceased.

                                       -2-
      It is the intention of the parties that they will make application to Webb
      [S]chool of Knoxville for T.K. beginning in the Fall of 1998. Each party will
      be responsible for fifty percent (50%) of all Webb tuition and expenses.
      However, if the child attends Webb or any other private preparatory school and
      the Wife remains unmarried and financially unable to bear her portion of said
      expenses, the Husband, will, as additional periodic alimony, pay all of the
      tuition and expenses until the Wife is either re-married or her economic
      situation is such that she can bear the expenses.

                                            ***


       Husband initiated this contempt action in August 2006. After a hearing on February
2, 2009, a memorandum opinion and order was entered three days later in which the trial
court held, inter alia, as follows:

      At the time of the divorce the parties contemplated that their minor son, T.K.,
      would attend Webb School if he were admitted. He was admitted to Webb and
      essentially attended school there from the fall of 2000 until the fall of 2004, at
      which time he was expelled forfeiting the entire tuition for the 2004-2005
      school year. Husband paid a total of $63,481.00 for the Webb tuition and
      seeks one-half of that from [Wife].

      The MDA obligates the wife to contribute one-half of the Webb tuition or that
      of any private preparatory school unless “wife remains unmarried and
      financially unable to bear her portion of said expenses.” In that case, husband
      agreed to “bear her portion” of those expenses as additional periodic alimony
      “until wife is either remarried or her economic situation is such that she can
      bear the expenses.” Wife says that prior to the filing of this petition the only
      time husband expressed an intention to seek contribution from her was in a
      letter of July 28, 2006. That letter, Ex. 1, pertained to the son’s enrollment at
      Austin Peay University and no other educational expenses were referenced.

      Wife remarried on June 17, 2000. The record is silent as to how the parties
      treated the Webb School tuition and associated costs either before or after her
      remarriage. The Court does not know whether husband deducted one-half of
      the educational expenses on his federal income tax return nor whether wife
      claimed the educational expenses as income even though paragraph 7 of the
      MDA provided that periodic alimony would be includable/deductible.



                                             -3-
There is no proof in the record as to what wife is capable of earning.
Petitioner testified that during the marriage the wife worked as an interior
decorator. There is no proof as to her earnings nor whether she worked prior
to their son entering school on a full time basis.

Wife currently is not employed. She testified that she cares for her two
children, ages 6 and 4. She also cares for her grandson (T.K.’s son born out
of wedlock).

Reading the last sentence of paragraph 6 in total, and applying a construction
that renders all parts of the sentence effective, the Court concludes that it was
the intent of the parties that husband would pay the Webb School tuition if
wife remained unmarried and unable to pay her share, or until she became
financially able to pay even if she remained unmarried. This construction
would allow the husband any tax benefits that might be available to him until
she remarried yet does not impose a burden upon her, which she could not
financially perform. To construe the sentence otherwise would impose upon
wife an obligation to pay upon remarriage even if she remained financially
unable to do so.

Collective Ex. 2 is comprised of respondent’s joint tax return for the years
2004 and 2005. The 2005 return attributes income to her from an interior
design business. The gross income was listed at $2673.00 and net income of
$1054.00. The Court can find no income attributed to wife in the 2004 return.

The Court has no other evidence before it regarding wife’s prior earnings. She
did testify that she had not worked full time since the birth of her second child.
There is no information from which the Court can even determine what she
might be capable of earning. The Court finds that respondent is not
responsible for one-half of the Webb School tuition because husband has
not established by a preponderance of the evidence that she has ever become
financially able to bear that expense.

After the son’s expulsion from Webb School and after having completed an
intensive residential program to address his drug and alcohol abuse, along with
other psychological problems, the son was enrolled at St. Andrews School at
Sewanee. Husband testified that the parties agreed to St. Andrews because it
was a school with a “rolling enrollment” and was relatively close by. Wife
testified that she vehemently objected to enrollment in St. Andrews. In fact,
her un-rebutted testimony was that her current husband proposed to petitioner

                                       -4-
that the child reside locally week on and week off with his parents and go to
school in Knoxville.

Wife’s testimony regarding her objections is logical and reasonable given the
circumstances. Further, St. Andre[w]s is governed by paragraph 6 of the
MDA. Again, the Court has no basis to determine her ability to pay one-half
of the tuition at St. Andrews.

Son was expelled from St. Andrews prior to completing a single semester.
Thereafter, he was enrolled at Farragut High School again from which he was
expelled. In the interim he had run away from home and was facing
delinquency charges in Juvenile Court. Somewhere along the way he obtained
his general equivalency diploma. In the summer of 2006, son learned that he
had impregnated his girlfriend and that she was expecting a child.

On July 28, 2006, Ex. 1 was written from Mr. Hindman to [Wife]. The letter
is self-explanatory but basically advises her that T.K. will be enrolled at Austin
Peay University for the fall semester.

Again, [Wife] asserts that she strongly objected to her son going to Austin
Peay. He had just been expelled from two private and one public high schools.
He had just completed another intensive drug rehabilitation program at
Cornerstone. Austin Peay was being chosen because it would accept a general
equivalency diploma. The son had just learned that he was the father of a
child. [Wife] testified that he was continuing to abuse drugs and alcohol.

Ex. 1 indicates Mr. Hindman had discussed Austin Peay with T.K. However,
there is no mention of discussion with [Wife]. She testified that petitioner said
that he was “shipping him (T.K.) off to Austin Peay.” There is nothing in this
letter to reflect an agreement to send the child to Austin Peay. Wife is not
responsible for one-half of the associated costs.

As it turns out it appears that [Wife’s] concerns were well founded. T.K. did
not complete the semester at Austin Peay and returned to Knoxville.
Ultimately he was enrolled at Pellissippi S[t]ate Community College and
apparently has obtained an Associate’s Degree there.

Wife again denies that she agreed to placement at Pellissippi State. She
testified that her son was using drugs heavily at the time he enrolled. He had
failed to complete a semester of college. It can hardly be said that he was

                                       -5-
progressing satisfactorily in his education at that time. Wife testified that
because of continuing drug and alcohol use she felt that he would fail. She
also testified that she felt that money would be better spent on treatment and
that further treatment should be obtained instead of spending money on
education. Again, the Court finds that there was no agreement as to the
enrollment at Pellissippi State Community College.

Upon completion at Pellissippi State the son enrolled at the University of
Tennessee. Petitioner testified that their son is now classified as a junior at the
University of Tennessee and is only one semester behind his classmates from
high school. It would appear that he is now satisfactorily progressing although
neither side offered evidence to support this.

Wife argues that she cannot afford the University of Tennessee because she is
not working. There is no “ability to pay” limitation regarding college. Wife
agreed to pay one-half of the costs limited to that which would be charged
by the University of Tennessee. Therefore, as long as he is satisfactorily
progressing in school and absent some reasonable basis for not agreeing to
his enrollment at the University of Tennessee, wife is obligated to pay one-
half of the education expenses.

However, Ex. 4 submitted by [Husband] shows that his expenditures include
a generous allowance for food, cable television, cell phone, gasoline for the
son’s car and so forth. Wife’s responsibility to pay is limited to the costs of
tuition, housing, and food costs that would not exceed that which the
University of Tennessee would normally charge.

. . . Here the parties agreed that the University of Tennessee would be the
benchmark for education expenses and further agreed that those expenses
would be reasonable. . . .

After expulsion from Webb School the son attended the SUWS of Carolina
program (referred to as the Wilderness program). The Court finds that the
parties did agree that this was a reasonable and necessary program and the
mother should pay one-half of that fee, as well as one-half of the fee of Mary
Consoli, Education Consultant.

CONCLUSION

The Court observes that in order to require contribution toward education


                                        -6-
       expense there must be an agreement between the parties as to the school the
       son will attend. Further, there must be a showing that the child is satisfactorily
       progressing with his education.

                                             ***

       The petition asks that [Wife] be found in contempt of court for a willful failure
       to follow the court’s orders. [Wife] testified that prior to the filing of the
       petition she had never been asked to pay anything toward either the treatment
       at the Wilderness program nor education expenses. She explained that in
       regard to the Wilderness program she was under the impression that it was
       covered by husband’s insurance. Although husband indicated that the
       insurance did not cover it there was no proof that wife was ever advised that
       it did not.

       Therefore, the Court declines to hold the wife in contempt.

       Furthermore, prior to any contribution by the wife toward the education
       expenses the Morgan Keegan fund shall be applied to those costs.

                                             ***

(Emphasis added.) Husband subsequently filed a petition for a new trial or to alter or amend
final judgment, arguing as follows:

       [P]ursuant to Paragraph Six (6) of the [MDA] the parties agreed that each
       party would pay one half (½) of the educational expenses of the child,
       including books, tuition, room and board as long as the child was making
       satisfactory progress in school. The obligation applied to any education
       endeavor of the child that the parties, as joint custodians, agreed upon,
       including private, elementary, middle, high school and any college expenses
       up to the cost of the University of Tennessee.

       That pursuant to the last paragraph on page six (6) of the [MDA], the parties
       clearly agreed that the minor child would be applying to Webb School in the
       fall of 1998. The [MDA] also states that “if the child attends Webb or any
       other private preparatory school and the Wife remains unmarried and
       financially unable to bear her portion of said expenses the Husband will, as
       additional periodic alimony, pay all of the tuition and expenses until the Wife
       is either remarried or her economic situation is such that she can bear this

                                              -7-
       expense.”

       That based upon the express language of the [MDA] the parties clearly
       anticipated the Wife becoming financially able upon remarriage. Therefore,
       they used the conjunction “or” as opposed to the conjunction “and.”

(Emphasis provided by Husband). After Husband’s motion was heard by the trial court, an
order modifying the original judgment was entered April 14, 2010, nunc pro tunc to May 18,
2009. The order provided as follows:

       Mother is required to reimburse the Father one half (½) the cost for Mary
       Consoli, Educational Consultant ($4,250.00), SUWS of Carolina ($19,625.00).

       . . . Mother is also responsible for one half (½) of the cost of Webb School
       from June, 2000, through February 2, 2009. The total cost for Webb School
       was Sixty Three Thousand Four Hundred Eighty One Dollars ($63,481.00).

       . . . Mother shall owe the Father one half (½) of the cost as outlined above for
       a total of Forty Three Thousand Six Hundred Seventy Eight Dollars
       ($43,678.00) as of February 2, 2009.

                                            ***

Wife filed a timely appeal.


                                         II. ISSUE

       We restate the issue presented by Wife as follows:

       Did the trial court err in entering judgment for Husband upon a petition for
       contempt based upon a MDA providing for educational expenses when
       Husband, who was the proponent of the MDA, failed to introduce proof that
       a condition precedent to Wife’s obligation to perform under the MDA had
       occurred.


                              III. STANDARD OF REVIEW

       The factual findings of the trial court are accorded a presumption of correctness, and

                                             -8-
we will not overturn those factual findings unless the evidence preponderates against them.
See Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With
respect to legal issues, our review is conducted “under a pure de novo standard of review,
according no deference to the conclusions of law made by the lower courts.” Southern
Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).


                                     IV. DISCUSSION

        Wife admits that the parties entered into a contract to essentially split Son’s
educational and medical expenses. She claims, however, that the duty to pay one-half of the
educational expenses of Son was conditioned upon the child making “satisfactory progress
in school.” Wife asserts that this obligation was to apply to any educational endeavor of Son
that the parties, as joint custodians, agreed upon, including private elementary, middle and
high school, and any college expenses up to the cost of the University of Tennessee. Wife
argues that as the proponent of the MDA, Husband bore the burden of proof with regard to
fulfillment of the condition precedent to Wife’s duty to pay her share of Son’s educational
expenses. See John H. Moore & Sons v. Adams, 324 S.W.2d 499, 501 (Tenn. Ct. App. 1959).
She asserts that because there was no proof in this action with regard to Son’s “satisfactory
progress” at Webb or any other institution, her duty to pay per the terms of the MDA was
never triggered. The court specifically held in its memorandum opinion and order “that in
order to require contribution toward education expense . . . there must be a showing that the
child is satisfactorily progressing with his education.”

       Contracts reserving to one party the right of satisfaction or approval of certain acts or
conditions as a condition precedent to performance are recognized as valid in Tennessee.
Robeson & Weaver v. Ramsey, 245 S.W. 413 (Tenn. 1922). A condition precedent assumed
by a party must be fulfilled by him before he can demand performance of the other party.
Interstate Bldg. Corp. v. Hillis, 66 S.W.2d 597 (Tenn. Ct. App. 1933); Mack v. Hugger Bros.
Constr. Co., 10 Tenn. App. 402 (1929).

        Husband contends that Wife failed to plead or otherwise try by consent or implication,
the affirmative defense of the non-performance of a condition precedent. Husband notes that
as required by Tenn. R. Civ. P. 8.01, his petition set forth in numbered paragraphs a short and
plain statement of his claim and entitlement to reimbursement of one-half of certain
expenses. He argues that under Tenn. R. Civ. P. 8.02, Wife likewise was required to “state
in short and plain terms . . . her defenses to each claim asserted and . . . admit or deny the
averments upon which the adverse party relies. . . .” He further observes that under Rule
8.03, Affirmative Defenses, Wife was required to:



                                              -9-
        set forth affirmatively facts in short and plain terms relied upon to constitute
        accord and satisfaction, arbitration and award, . . . estoppel, failure of
        consideration, . . . and any other matter constituting an affirmative defense. .
        ..

       In paragraph 3 of Husband’s petition for contempt, Husband averred that he had
personally paid all the educational expenses for Son at Webb. Wife admitted to this
averment in her answer and amended answer, without qualification or assertion of any
defense as to the non-performance of a condition precedent. Paragraphs 5 and 8 of the
petition alleged Husband’s payment for the residential treatment program and Wife’s refusal
to pay for one-half of its cost. The answer and amended answer of Wife admit refusing to
pay one-half of the cost but only qualify or defend on the bases of lack of consultation or
possible insurance coverage, not because of non-performance of any condition precedent.
Although Wife specifically set forth four separate affirmative defenses in her original answer
and eight separate affirmative defenses in her amended answer, she failed to plead or even
mention the affirmative defense of non-performance of a condition precedent. Furthermore,
Wife admits that she failed to put on any proof at trial of what she considered to be
“satisfactory progress in school.” She did not raise the argument that Husband had neglected
to establish that Son’s progress at Webb, prior to the expulsion, was unsatisfactory.1

        Clearly, “[t]he non-performance of a condition precedent is an affirmative defense that
must be plead. Tenn. R. Civ. P. 9.03. If it is not properly raised in the trial court, it will not
be considered on appeal.” Harlan v. Hardaway, 796 S.W.2d 953, 957 (Tenn. Ct. App. 1990)
(citing Mack v. Hugger Bros. Constr. Co., 10 Tenn. App. 402, 419 (1929)). Wife simply
failed to plead or otherwise properly raise the affirmative defense of non-performance of a
condition precedent at the trial court level. As a result, we find that the affirmative defense
of non-performance of a condition precedent has been waived and cannot and will not be
considered for the first time on appeal. Harlan, 796 S.W.2d at 957.

         As to the assessment for one-half of medical expenses not covered by Husband’s
insurance, the MDA clearly provides that “[a]ll medical, pharmaceutical, . . . psychological
. . . expenses not covered by said insurance shall be borne by the Husband until re-marriage
of the Wife at which time all of the aforementioned medical expenses will be paid equally
. . . .”



        1
         We note that the trial court determined Wife “vehemently objected to enrollment in St. Andrews,”
“strongly objected to her son going to Austin Peay,” and “denie[d] that she agreed to placement at Pellissippi
State.” Regarding Webb, the record is silent, other than the fact that Son attended there for four years - Fall
2000 to Fall 2004.

                                                     -10-
       We find the trial court’s interpretation of the provisions of the MDA relating to
educational and medical expenses is supported by a preponderance of the evidence.


                                    V. CONCLUSION

       The judgment of the trial court is affirmed and this case is remanded for collection of
the costs below. Costs on appeal are taxed the appellant, Louise Helen Hindman (Dover).




                                                    _________________________________
                                                    JOHN W. McCLARTY, JUDGE




                                             -11-
