                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                November 9, 2010 Session

    REBECCA LYNN WEINGART v. JONATHAN SHANE FORESTER

               Appeal from the Chancery Court for Washington County
                   No. 37315     G. Richard Johnson, Chancellor


                  No. E2010-00895-COA-R3-CV - Filed April 11, 2011


This appeal arises from an entry of divorce. The parties executed a prenuptial agreement
prior to their marriage. The prenuptial agreement outlined the classification of separate
property and the parties’ respective rights in the event of divorce. After nearly seven years
of marriage, the wife filed a petition for divorce. The parties participated in mediation, and
a hearing was held to resolve the remaining issues. At the hearing, counsel for both parties
presented arguments regarding the unresolved issues and eventually reached an agreement
to settle those issues during a recess of the hearing. Counsel for the parties announced the
agreement before the trial court, and the trial court subsequently entered an order. The
husband appeals and challenges the trial court’s finding that the wife’s retirement account
is entirely her separate property. After reviewing the record, we find that the trial court erred
in finding that the prenuptial agreement was ambiguous. Nevertheless, the trial court
properly awarded the wife’s retirement account to her as separate property. Therefore, we
reverse in part and affirm in part.

                 Tenn. R. App. P. 3; Judgment of the Chancery Court
                Affirmed in Part and Reversed in Part; 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 C HARLES D. S USANO, J R., J., joined.

Gregory W. Francisco, Kingsport, Tennessee, for the appellant, Jonathan S. Forester.

Judith Fain, Johnson City, Tennessee, for the appellee, Rebecca L. Weingart

                                          OPINION

                              I. FACTUAL BACKGROUND
       Jonathan S. Forester (“Husband”) and Rebecca L. Weingart (“Wife”) wed in 2002.
A few days prior to the marriage, the parties executed a prenuptial agreement (“Prenuptial
Agreement” or “Agreement”). After nearly seven years of marriage, Wife filed a petition for
divorce in April 2009 along with a proposed parenting plan for the couple’s one child.

         In the Prenuptial Agreement, the parties disclosed their respective assets and
liabilities. The Agreement also outlined the division of property in the event that the
marriage ended. Namely, the Agreement provided that each party would retain his or her
own separate property including retirement accounts.

       After participating in mediation, unresolved issues remained between the parties. A
hearing occurred on March 2, 2010. The parties appeared at the hearing with an agreed
parenting plan and a proposed division of personal property. No witnesses presented
testimony at the hearing; the hearing primarily consisted of argument from the parties’
attorneys. Most of the debate centered on the definition of separate property within the
Prenuptial Agreement. Husband’s counsel argued that Wife’s employment income
constituted marital property because certain provisions of the Prenuptial Agreement were
ambiguous. Husband urged the equitable division of Wife’s contributions from her
employment income to her retirement account. While agreeing with Husband that the
provision was ambiguous, the trial court found:

       [T]hat the provision in the prenupt on Page 4, Section 5, applying the Rules of
       contract construction, and in particular giving words for ordinary, usual
       meaning, the Court finds that income from a job is not included in number 5.
       It’s ambiguous and I cannot get employment income anywhere from any of the
       wording in Item 5, Page 4. Now, having said that, it appears to me that on
       Page 11, Item 23 is very clear, very clear, irrespective of how income is
       defined. Each get their own retirements, period.

        After the attorneys proceeded to raise additional issues and arguments, the trial court
took a recess and ordered the attorneys to organize the remaining issues. Following the
recess, the attorneys returned to court with an agreement. The following exchange occurred:

       Ms. Fain [Wife’s counsel]: You don’t really need to if your Honor, please. I’m
       trying to help you, okay. Your Honor, we have an announcement to make to
       the Court. We would like that prenup that, perhaps the one that I sent to you
       be made an Exhibit in this trial and not just a filing with the Court. We have
       agreed, my understanding, and I’ll just reiterate from earlier today when you
       declared – we stipulated to declare the parties to be divorced, used the property
       list that the Plaintiff [Wife] filed, plus the one page of amendments provided

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       to the Court as an Exhibit to divide the personal property between the parties.
       Adopt the final Parenting Plan. Each party’s retirement is their own separate
       property. That there is to be no further encumbrance on the real estate in
       which Mr. Forester or his mother are residing until that property is sold. Dr.
       Weingart’s property is real estate that’s titled solely in her name, is her
       separate property as well as the appreciation. And that’s where we left off this
       morning. Is that a correct statement, Mr. . . . .

       Mr. East [Husband’s counsel]: That’s correct, your Honor.

The trial court subsequently entered an order reflecting the agreement announced in court by
the parties.

      Thereafter, Husband filed a notice of appeal challenging the trial court’s classification
of Wife’s retirement account as separate property. Husband contends that the retirement
account is subject to equitable division because the trial court held that Wife’s employment
income constituted marital property and she contributed her income into the retirement
account.

                                         II. ISSUES

       Husband raises the following issue:

       1. Whether the trial court erred in holding that Wife’s retirement account was
       entirely separate property pursuant to the Prenuptial Agreement, when
       substantial sums of income earned during the marriage, which the court
       determined was marital property, had been contributed to such plan.

Wife raises additional issues, which we restate:

       2. Whether the trial court erred in holding that the Prenuptial Agreement was
       ambiguous.

       3. Whether Husband’s appeal constitutes a frivolous appeal.

                             III. STANDARD OF REVIEW

       On appeal, we review the decision of a trial court sitting without a jury de novo upon
the record, accompanied by a presumption of correctness of the trial court’s findings of fact,
unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v.

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Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). A trial court’s conclusions of law are subject to
a de novo review with no presumption of correctness. Union Carbide Corp. v. Huddleston,
854 S.W.2d 87, 91 (Tenn. 1993).

                                         IV. DISCUSSION

                                     A. Prenuptial Agreement

       Our resolution of the issues raised in this appeal involves the trial court’s
interpretation of the Prenuptial Agreement. The interpretation of written agreements is a
matter of law, which this court reviews de novo without a presumption of correctness. See
Guiliano v. Cleo, Inc., 995 S.W.2d 88, 95 (Tenn. 1999). When interpreting prenuptial
agreements, we employ the same principles of construction that are applicable to other
written contracts.1 Wilson v. Moore, 929 S.W.2d 367, 373 (Tenn. Ct. App. 1996).

       The cardinal rule of contract interpretation is that the court must attempt to ascertain
and give effect to the intention of the parties. Christenberry v. Tipton, 160 S.W.3d 487, 494
(Tenn. 2005). In attempting to ascertain the intent of the parties, the court must examine the
language of the contract, giving each word its usual, natural, and ordinary meaning. See
Wilson, 929 S.W.2d at 373. The court’s initial task in construing the contract is to determine
whether the language is ambiguous. Planters Gin Co. v. Fed. Compress & Warehouse Co.,
78 S.W.3d 885, 889-90 (Tenn. 2002). Where the language of a contract is clear and
unambiguous, its literal meaning controls the outcome of the dispute. Planters Gin Co., 78
S.W.3d at 890. On the other hand, a contract is ambiguous if its meaning is uncertain and
is susceptible to more than one reasonable interpretation. See Frank Rudy Heirs Assocs. v.
Moore & Assocs., Inc., 919 S.W.2d 609, 613 (Tenn. Ct. App. 1995); Gredig v. Tennessee
Farmers Mut. Ins. Co., 891 S.W.2d 909, 912 (Tenn. Ct. App. 1994). “When a contract term
is ambiguous there was no meeting of the minds.” Inscoe v. Kemper, No. M1999-00741-
COA-R3-CV, 2000 WL 1657844, at *3 (Tenn. Ct. App. W.S., Nov. 6, 2000).

      Sections Four and Five of the Prenuptial Agreement are relevant to our discussion.
Those provisions provide, in pertinent part:

        4. Separate Property of the Parties. The parties hereto agree that each party
        shall retain, free from any and all claims whatsoever kind or nature of the other
        party, as his/her separate estate, the following property, hereinafter collectively


        1
          Tennessee public policy favors prenuptial agreements. Perkinson v. Perkinson, 802 S.W.2d 600,
601 (Tenn. 1990). Parties benefit from prenuptial agreements because such agreements define their marital
rights in property. See Sanders v. Sanders, 288 S.W.2d 473, 477 (Tenn. Ct. App. 1955).

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      referred to as “Separate Property”:

      (a) Any and all property, whether real, personal, or mixed, acquired by such
      party hereto by purchase, exchange, gift, bequest, devise or descent and/or
      with his or her Separate Property, as defined by this paragraph 5 of this
      Agreement; and

      (b) In addition and not in limitation of the terms of paragraph (a), all property
      set forth on Exhibit “A” attached hereto shall be the Separate Property of
      Weingart and all property set forth on Exhibit “B”, attached hereto, shall be the
      Separate Property of Forester; and,

      (c) In addition and not in limitation of the terms of paragraphs (a) and (b), any
      and all appreciation in the value of Separate Property of such party as set forth
      on the respective exhibits attached hereto and as defined in this paragraph 4,
      whether by reason of interest earned on such Property, whether passive or
      otherwise, appreciation of the value of such Separate Property for whatever
      reason, and/or the sale of exchange or substitution of any kind/or all items of
      Separate Property.

      (e.g. Any and all appreciation in the value of Weingart’s Separate Property set
      forth on Exhibit “A”, including but not limited to, income from such Separate
      Property, and any Separate Property defined in paragraph (a) above shall be
      and remain the sole and absolute property of Weingart.)

      5. After Acquired Property. The parties agree that during the period
      subsequent to the date of their marriage, all property, whether real, personal or
      mixed, acquired by them, shall be the Separate Property as defined in
      paragraph 4 hereof, of the party who received by gift, bequest, devise or
      descent such property and/or whose Separate Property was used to purchase
      or acquire such property, and/or whose labor or services resulted in the funds
      for the payment for, or acquisition of, such real, personal or mixed property,
      unless otherwise agreed to in writing by and between the parties.
      Notwithstanding any legal presumptions to the contrary, only property
      acquired and titled, in writing, whether or not required by applicable law, in
      the joint names of the parties as Tenants by the Entireties shall be defined as
      “After Acquired Property.”. . . .

Section 23 of the Prenuptial Agreement also sets out that Husband waives his interest in
Wife’s retirement accounts by relinquishing “any and all interest which he may now or

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hereafter have or accrue in and to Weingart’s Basic Benefit Plan and/or Thrift Savings Plan.
. . .”

        In interpreting the above provisions, the trial court found that “‘income’ was not
covered by the [P]renuptial [A]greement but that it was very clear that both parties were to
retain her and his separate retirement benefits as their separate property under that agreement.
. . .”
        Husband takes issue with the trial court’s determination that under the Prenuptial
Agreement, Wife was permitted to funnel her employment income into her retirement
account thereby creating separate property that would otherwise constitute marital property.
He points out that the trial court found that Section Five of the Prenuptial Agreement was
ambiguous and did not include employment income within the definition of “Separate
Property.” Thus, Husband contends that Wife’s income contributions to her retirement
account are marital property subject to equitable division.

        Wife counters that the trial court erred in finding that Section Five was ambiguous.2
She argues that a straightforward reading of Sections Four and Five establishes that all
property acquired after the marriage was to remain separate property unless the property was
jointly titled in both parties’ names. Wife cites this court’s decision in Reed v. Reed, No.
M2003-02428-COA-R3-CV, 2004 WL 3044904, at *5 (Tenn. Ct. App. M.S., Dec. 30, 2004)
in support of her argument. In Reed, the court addressed a similar dispute regarding a
prenuptial agreement and the classification of separate property. Id. As in this case, the
Prenuptial Agreement failed to include a definition for the term “property”, and the Reed
court observed that the plain meaning of the term “property” would apply.3 Id., n.1 (citing
Planters Gin Co., 78 S.W.3d at 889-90).

       After reading the Prenuptial Agreement and reviewing the record, we find that the
Agreement’s language is clear and unambiguous. The Agreement outlines that the parties
intended to maintain their own separate property throughout the marriage unless they agreed


        2
         In her brief, Wife argues that Husband’s appeal is an attempt to repudiate the parties’ agreement
that was announced in open court. After reviewing the record, it appears that Husband’s appeal concerns
the legal import of the trial court’s finding that a provision of the Prenuptial Agreement was ambiguous
rather than a repudiation of the agreement that the parties’ respective retirement accounts are separate
property.
        3
         Black’s Law Dictionary defines “property” as “[a]ny external thing over which the rights of
possession, use, and enjoyment are exercised.” Black’s Law Dictionary 1017 (8th ed. 2005). Applying the
plain and ordinary meaning of the term, we conclude that the parties intended that “all property” to
encompass property of any sort, including earnings from employment, retirement or elsewhere. See Reed,
2004 WL 3044904, at *5, n. 1.

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to specifically designate property as “After Acquired Property” or marital property in writing.
We further find that Wife’s income is included in the definition of “Separate Property.”
Exhibit “A” that was attached to the Prenuptial Agreement lists Wife’s income as her
separate property. Under the provisions of the Agreement, Wife would maintain her separate
property throughout the duration of the marriage including her employment income. The
trial court erred in finding that Wife’s income was not covered by the Agreement and
deeming it ambiguous. Therefore, we reverse the trial court’s finding in that regard.
Nevertheless, in spite of finding the Agreement to be ambiguous, the trial court properly
awarded Wife’s retirement accounts to her. As the trial court noted, the Agreement provides
that the parties would retain their respective retirement accounts. Husband’s contentions that
Wife’s contributions to her retirement account constitute martial property cannot prevail over
a straightforward reading of the Prenuptial Agreement. Accordingly, we affirm the trial
court’s award of Wife’s retirement accounts as her separate property.

                                     B. Frivolous Appeal

       Wife requests this court to find Husband’s appeal frivolous and award damages in the
form of attorney’s fees. To find an appeal frivolous, the appeal must be wholly without merit
and lacking in justiciable issues. See Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn.
1977); Industrial Dev. Bd. of Tullahoma v. Hancock, 901 S.W.2d 382, 385 (Tenn. Ct. App.
1995). We do not find Husband’s appeal devoid of merit, and therefore, deny the request.


                                     V. CONCLUSION

       The trial court’s order is reversed in part and affirmed in part. Costs of this appeal are
taxed to the appellant, Jonathan S. Forester. This cause is remanded, pursuant to applicable
law, for the collection of costs assessed below.




                                                     _________________________________
                                                     JOHN W. McCLARTY, JUDGE




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