Penland v. Penland
| Decision Date | 10 March 1975 |
| Parties | Jacquelline A. Whitaker PENLAND, Appellant, v. Edwin H. PENLAND, Appellee. |
| Court | Tennessee Supreme Court |
Don. A. Layton, Oak Ridge, for appellant.
W. Clark Meredith, Joyce, Anderson, Wood & Meredith, Oak Ridge, for appellee.
Appellant Jacqueline A. Penland obtained a divorce from appellee Edwin H. Penland on March 15, 1969. Custody of their two daughters, then sixteen and fourteen years of age, was awarded to wife. Husband and wife had entered into an agreement which was incorporated into the decree and approved by the court, wherein husband assumed liability for all future educational expenses of the children beyond high school level.
On September 12, 1973, Mrs. Penland filed two separate petitions seeking to enforce the liability of the father to pay the first semester's college expenses incurred by the youngest daughter. Mr. Penland moved for summary judgment which was granted by the trial court and this direct appeal resulted.
The first paragraph of the property settlement agreement awards custody of the parties' 2 daughters to the wife and the second paragraph provides as follows:
'2. (a) That the parties jointly own real property located at 107 North Tampa Lane, in Oak Ridge, Tennessee, and the wife, party of the second part agrees to transfer all her right, title and interest in said property unto the said husband, party of the first part.
(b) As child support, the wife and children shall have the privilege of living on the property and maintain the same as a home for said minor children so long as she is unmarried or until the children go to school above high school level, or marry, or otherwise leave home.
(c) The husband shall assume liability for all future educational expenses of the children beyond high school level.
(d) The husband agrees to pay all maintenance, insurance and taxes on the said property together with the remaining indetedness on the same in the sum of $16,000.00.'
The father's motion for summary judgment asserts that by virtue of the Legal Responsibility Act of 1971 and the decisions of this Court in Whitt v. Whitt, Tenn., 490 S.W.2d 159 (1973); Weinstein v. Heimberg, Tenn.App., 490 S.W.2d 692 (1972), and Parker v. Parker, Tenn., 497 S.W.2d 572 (1973), that no legal obligation exists for the support of a child after age eighteen. The order of the trial judge sustaining defendant's motion for summary judgment recites that said statute and decisions control the issues raised in said petitions and dismissed same.
Appellant's first assignment of error contends that the trial court should have granted her 'Petition to Correct Mistake or Amend or Modify Final Decree', one of the two separate petitions filed on the same date. Said petition alleges, in substance, that Mrs. Penland gave up her interest in the real property in return for Mr. Penland's agreement to assume liability for his children's educational expenses beyond high school level; that Mr. Penland now has the use of the property but refuses to pay the educational expenses of his children.
The petition prays for correction of the final decree, by divesting title out of defendant and vesting same back in both parties or, in the alternative, direct defendant to place in trust a sufficient amount of money to assure the future educational expenses of the children of the parties.
Appellant calls our attention to Jones v. Jones, Tenn.App., 486 S.W.2d 927 (1972), where Mr. Jones' petition was also styled one to correct mistake or amend or modify final decree and was sustained, on appeal, as a Bill of Review. In the Jones petition it was alleged that at the time the final decree was entered all parties, their attorneys and the court were of the opinion that a note secured by a trust deed on real estate was the sole and separate property of Mr. Jones. The trial judge awarded alimony and child support predicated on the assumption that Mr. Jones was entitled to all of the proceeds of said note. Approximately 14 months later, it was discovered that Mrs. Jones' name was on the note, she claimed one-half of the proceeds and Mr. Jones filed a petition for relief from the terms of the final decree. The Court of Appeals held that, '. . . had the true facts been known as they existed at the time the decision was entered, they would have produced a different determination.'
It is apparent in the instant case that the exact decree was entered that was intended to be entered under the facts and the law as it existed in May, 1969. The law imposed a duty to support the children of the parties to age 21, in May, 1969. Mrs. Penland's dissatisfaction with the decree arises from the change in the law that occurred in May, 1971, when the legal duty of support was...
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Long v. McAllister-Long
...child support and alimony that "merge" into the final divorce decree and remain modifiable by the courts. See Penland v. Penland, 521 S.W.2d 222, 224 (Tenn.1975); Noble v. Stubblefield, 755 S.W.2d 454, 457 (Tenn.Ct.App.1988). However, agreements involving support for non-disabled children p......
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