Turner v. Turner
| Decision Date | 11 August 2016 |
| Docket Number | No. W2015-01165-COA-R3-CV,W2015-01165-COA-R3-CV |
| Parties | EMILY WADE TURNER v. JOHN B. TURNER, JR. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Shelby County
Mother filed a petition to enroll and enforce a Mississippi divorce decree in Tennessee requesting the trial court to order Father to continue paying one-half of the parties' child's private school tuition and costs. Father opposed Mother's request and instead argued that the parties' property settlement agreement did not mandate private schooling, that it was reasonable for him to withhold consent to private schooling, and that, in the alternative, the costs associated with private schooling should be apportioned based on the parties' incomes. The trial court found in favor of Mother on all issues. Father appealed. Discerning no error, we affirm.
John B. Turner, Jr., Memphis, Tennessee, Pro Se.
Kathy Baker Tennison, Memphis, Tennessee, for the appellee, Emily Wade Turner.
OPINIONJohn B. Turner, Jr., ("Father") and Emily Wade Turner ("Mother") were divorced on October 24, 2011, by order of the Chancery Court of DeSoto County, Mississippi. Prior to their divorce, on October 12, 2011, the parties entered into a Child Custody, Support, and Property Settlement Agreement ("PSA"), which was incorporated into the final judgment.
The parties have one minor child ("child"), who was six years old and enrolled in a private school at the time the parties divorced. The sole issue in this case concerns the child's continuation of private school education based on the terms of the PSA. Under a section titled "Child Support," the PSA provides, in relevant part, that the parties acknowledge that the child was attending a private school in Memphis, Tennessee, at the time of their divorce. The PSA further provides that each party is responsible for one-half of the "child's tuition, institutional after school care costs, books, mandatory fees, uniforms, and one-half of all agreed upon extra curricular [sic] activities as long as both parents agree to the choice of said private school." In addition, the PSA states that neither party shall unreasonably withhold his or her agreement. The parties also must "agree annually about the minor child's school arrangement for that year." In addition to splitting tuition, both parties were also required to pay one-half of the cost for a vehicle, automobile insurance, and college-related expenses pursuant to the PSA once the child attained the age where these items were appropriate. Last, under a section titled "Choice of Law," the PSA provides that the law of the State of Mississippi governs the agreement "in all respects."
Sometime during November 2014, Father advised Mother that he could no longer afford to pay one-half of the child's private school tuition. He indicated that he did not consent to the child's re-enrollment at her current private school for the 2015-2016 school year. At this time, the child was nine years old and had attended her current private school from junior kindergarten through fourth grade. Based on Father's statements, Mother filed a Petition for Registration, Enrollment, and Enforcement of Mississippi Divorce Decree in the Shelby County Circuit Court on February 23, 2015. Mother requested enrollment and enforcement of the parties' divorce decree and an order directing Father to continue paying his one-half share of the child's private school tuition and expenses.
Father filed an answer to Mother's petition on March 29, 2015, generally denying all substantive allegations and requesting dismissal of her claim. Father did, however, admit in his answer that the divorce decree should be enrolled in Tennessee. On April 13, 2015, the trial court entered a consent order enrolling the divorce decree.
The trial court conducted a hearing on May 13, 2015. Mother and Father were the only witnesses. In lieu of a transcript from the hearing, the parties submitted a statement of the evidence elicited at trial. The statement of evidence indicates that both parents are currently licensed attorneys in the State of Tennessee. At the time of trial, Mother was employed as a corporate attorney earning $152,000.00 per year.
Shortly before the parties' divorce, the law firm that employed Father dissolved, and he practiced as a solo practitioner for a little over one year. At this time, his only "certain" income was approximately $1,300.00 per month earned as a part-time prosecutor for the City of Horn Lake, Mississippi. The evidence shows that Father accumulated credit card debt to meet his monthly expenses during the time he was self-employed, amounting to a significantamount of debt. This debt has not yet been paid in full. Currently, Father is employed as an Assistant County Attorney for Shelby County, Tennessee, earning approximately $89,000.00 per year. Father testified that he received a 3% increase in salary, but it is unclear from the statement of the evidence whether his $89,000.00 income includes this raise. He conceded that he earns more currently than he did at the time the parties executed the PSA. Attached to the statement of the evidence is an exhibit showing Father's monthly income and expenses, indicating that Father has a $21.00 surplus each month after paying his expenses. Father's expenses include his payment of one-half of the child's private school tuition. Father did not enter the income and expense report as an exhibit at trial, despite its designation as an exhibit attached to the statement of evidence. Instead, the statement of the evidence indicates that Father read the figures aloud during his testimony. Father's expenses do not include any contributions to retirement savings, other than an obligatory contribution to the Shelby County Pension Fund. His expenses also do not include any savings that could be assigned to his future obligation under the PSA of paying for one-half of the costs associated with the child's vehicle, automobile insurance, or college expenses. Father also indicated that he expected to marry in August 2015 but his finances would not be adversely affected by the marriage.
Father testified that he agreed to keep the child in her current private school to reduce the stress she faced from the parties' divorce. Father stated that he was not unhappy with the child's education at the private school. However, Father advised that he could not afford to continue paying one-half of the child's tuition and expenses, which totaled $622.50 per month, in addition to saving for the child's college education, his attorney's fee bills, and credit card payments. The child's private school tuition and expenses is in addition to Father's monthly child support obligation of $729.00 per month. Father testified that he conducted research on other options for the child's education. Farmington Elementary School, which is part of the Germantown Municipal School system, is the public elementary school for which the child is zoned based on Mother's residence. The evidence shows that, "[p]er research done by Father, Farmington [Elementary School] is among the most highly rated elementary schools in the State of Tennessee." Father stated that the child would not be harmed by changing schools.
The statement of evidence indicates that Mother testified that removing the child from her private school would not be in the child's best interest. Mother testified that if the child changed schools in 2015, she would then be required to change again in 2016 to move to another public school, Houston Middle School. Mother also testified that the parties "always intended that the child would receive a Christian education."
The trial court entered an order on Mother's petition on May 26, 2015. The trial court found that the three paragraphs, discussed infra, governing the child's educational expenses was "somewhat ambiguous." After applying the rules of contract interpretation and considering the intent of the parties, the trial court found that the word "tuition" and thephrase "choice of said private school," inter alia, evidenced the parties' intent for the child to attend private school. The trial court also found that the "execution of a contract with any school" was indicative of a private school arrangement. Further, the trial court concluded that Father's withholding of consent was unreasonable because Father was able to meet his obligation under the PSA and still have a surplus of funds each month. The trial court additionally found that Father intended to marry in August 2015, and this was a voluntary assumption of any financial obligations associated with the new marriage. The trial court further concluded that it was not in the child's best interest to switch schools. Finally, the trial court declined to allocate the private school tuition and expenses differently than set forth in the PSA. Father timely appealed.
Father presents three issues for our review, which we have slightly restated:
In this appeal from a bench trial, we review the trial court's findings of fact de novo with a presumption of correctness, unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). No presumption of correctness, however, attaches to the trial court's conclusions of...
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