October 24, 1986
NANCY KELLY HEDGES, PLAINTIFF-APPELLANT
MERTLAND MCCLAIN HEDGES III, DEFENDANT-APPELLEE
Hamilton County Chancery; Hon. Howell N. Peoples, Chancellor.
Clifford E. Sanders, J., James W. Parrott, P.j., Houston M. Goddard, J., concur.
The opinion of the court was delivered by: Sanders
The Plaintiff-Appellant, Nancy Kelly Hedges, and Defendant-Appellee, Mertland McClain Hedges, III, were divorced in Georgia in 1968. Prior to the divorce, they entered into a property settlement agreement in which they agreed Nancy would have the custody of their minor daughter, Marianne, who was born July 3, 1965. Mertland would pay Nancy the sum of $300 per month as child support "until said child reaches her majority, marries or becomes self-supporting." For the same period of time and subject to the same terms and conditions, Mertland agreed to pay the child's medical expenses and educational expenses consisting of tuition and room and board incidental to high school and college. The agreement provided the school or schools to be attended by the child should be mutually agreed upon between the parties. In granting the divorce, the Court incorporated the provisions of the property settlement in the decree.
In December, 1979, the parties had a bitter disagreement and Mertland made no child support, medical expense or educational expense payments after that date.
After the divorce Mertland moved to Hamilton County, Tennessee, while Nancy and Marianne remained residents of the State of Georgia. In September 1983, Nancy filed suit in the Chancery Court of Hamilton County under the Uniform Enforcement of Judgments Act, T.C.A. § 26-6-101, et seq. to enforce the decree. Based on the Georgia judgment, she sought to recover approximately $15,000 in child support, $2,500 in medical expenses, and $24,000 in educational expenses up to and included September 1983. Plaintiff also seeks additional education expenses and child support payments to date.
Mertland defended the action on the theory Marianne became eighteen years of age on July 18, 1983, and says he is not liable for any child support, medical expenses, or educational expenses after that date. He further contends since Marianne now has sufficient income from a trust set up by her grandfather she is self-supporting and the Georgia judgment is not a final judgment as it relates to his liability for educational expenses.
This is the second time this case has been appealed to this court. At the first trial the court held it was without jurisdiction to award child support and medical expenses for the child after age 18, and the judgment relating to educational expenses was not final and enforceable.
On appeal this court held that under Georgia law child support and medical expenses can be enforced after a child reaches the age of eighteen and the trial court was in error in not considering any claim for educational expenses incurred prior to and after Marianne reached her majority. The decree of the Chancellor was modified and the case was remanded for a determination of child support and medical expenses up to date and what educational expenses, if any, the Plaintiff may be entitled to.
After remand, the Defendant amended his answer asking for modification of the divorce decree. He alleged Marianne was self-supporting; he should only have to pay education expenses at a public institution; all expenses should be eliminated because of his changed financial circumstances; and under Ga. Code Ann. § 53-1-3, he is released from his obligation to pay education expenses since they were paid by the Le Grande Kelly trust.
On remand the Chancellor found Mertland has been and is financially able to comply with the decree; the parties failure to agree on a school did not relieve Defendant form his obligation to pay for the educational expenses; there was no conflict between the decree and the property settlement agreement; the Defendant was relieved of his obligation of paying education and medical expenses under Ga. Code Ann. § 53-1-3; and Marianne became self-supporting in January 1985 when she became the beneficiary under her deceased grandmother's will. He awarded a judgment for $5,400 for child support form July 1983 through December 1984 and costs were taxed to the Defendant. Because of his other findings, the court declined to determine whether Sarah Lawrence College was reasonably suited to the educational needs of Marianne and the social and economic status of the Defendant.
The Plaintiff and Defendant have both appealed.
The Plaintiff asserts the trial court erred in 1) holding that Mertland was relieved from his obligation to pay educational and medical expenses of Marianne since a trust paid for those expenses; 2) finding there was no conflict between the Georgia divorce decree and the property settlement agreement; 3) holding Marianne became self-supporting on January 18, 1985, by reason of an inheritance under her grandmother's will; 4) allowing a portion of the discovery deposition of Maurice Martin to be read at trial; and 5) declining to make a ruling as to whether Sarah Lawrence College was reasonably suited to the educational needs of Marianne.
The Defendant asserts the trial court erred in 1) not finding Marianne became self-supporting upon or before she reached the age of eighteen by reason of income she received from the Le Grande Kelly trust; 2) finding the Howard and Padeia Schools were suitable to the educational needs of Marianne and to Mertland's economic status as required under the Georgia final decree.
This case was tried without a jury and is reviewed de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d). This court should give great weight to the trial court's determination of the credibility of the witnesses and disputed evidence, and should not disturb the ruling of the trial court unless there is clear, and convincing evidence to the contrary. See, Roberts v. Robertson County Board of Education, 692 S.W.2d 863 (Tenn. App. 1985); Haverlah v. Memphis Aviation, Inc., 674 S.W.2d 297 (Tenn. App. 1984). That is, however, except as to the issues previously decided by this court, which become the law of the case. See, In re Padgett's Will, 54 Tenn. App. 1, 387 S.W.2d 355 (1964).
The Plaintiff contends the trial court erred in holding the Defendant was relieved under Ga. Code Ann. § 53-1-3 from the obligation to pay educational and medical expenses of Marianne since the Le Grande Kelly trust paid those expenses. Ga. Code Ann. § 53-1-3 provides:
Whenever income from an estate or trust is available for the benefit of a person whose support is the legal obligation of another and the income is actually used for such person's support, the legal obligation of the other to support the person is reduced to the extent that the income is actually used for the person's support.
The Plaintiff insists that McElrath v. Citizens & Southern National Bank, 229 Ga. 20, 180 S.W.2d 49 (1972) controls this case. She argues the McElrath court only modified the father's obligation where it was mandatory for the trust funds to be used for the support, maintenance, and education of the minor children, and in this case it was discretionary whether the trust paid any money to Marianne. We cannot agree. The posture of the McElrath case was different from the case at bar. There, three cases were combined, and in one, the trustee had not disbursed funds and was seeking the court's direction. In fact, the McElrath court ordered the trustee to reimburse the father for child support payments made by him. We do find McElrath informative as to educational expenses "at elementary or secondary levels included in the words 'the legal obligation' to support as contained in the 1962 Act [Ga. Code Ann. § 53-1-3]."
Under the Le Grande Kelly Trust both Nancy Kelly Hedges and Marianne Hedges were equal sprinkling beneficiaries of the trust. The Chancellor found:
The facts in the present case clearly fit the very provisions set forth in Georgia Code Section 53-1-3. Income from the trust under the will of Le Grande Kelly was available for the benefit of Marianne Hedges. Marianne Hedges' support was the legal obligation of Mertland McClain Hedges. Income from the trust under the will of Le Grande Kelly was actually used for the support of Marianne Hedges, and accordingly, under the terms of the Statute, the legal obligation of Mertland McClain Hedges is reduced to the extent that income was actually used for the support of Marianne Hedges.
Accordingly, based on statement of counsel during the argument stating that all the educational expenses and the medical expenses sued for by the Plaintiff were in fact paid by the trust under the will of Le Grande Kelly, there can be no recovery for those expenses.
There is ample evidence in the record that the trust paid the educational expenses of Marianne.
This brings us to Plaintiff's second issue, where she alleges the trial court erred in holding there was no conflict between the Georgia divorce decree and the property settlement agreement. In the Plaintiff's first appeal to this court we found the Georgia decree provided:
"Mertland would pay Nancy the sum of $300 per month as child support 'until said child reaches her majority, marries or becomes self-supporting.' For the same period of time and subject to the same terms and conditions, Mertland agreed to pay the child's medical expenses and educational expenses consisting of tuition and room and board incidental to high school and college. The decree provided the school or schools to be attended by the child should be mutually agreed upon between the parties. In granting the divorce, the Court incorporated the provisions of the property settlement in his decree."
Although the Plaintiff raises this issue here, we do not have a copy of the final decree nor the settlement agreement in the record before us. Where the assignments of error on appeal are based on certain instruments and documents which are not made a part of the record on appeal, they are not reviewable by the Appellate court. See, Cosmopolitan Life Insurance Co. v. Woodward, 7 Tenn. App. 394 (1928).
In McClain v. McClain, 235 Ga. 659, 221 S.E.2d 561 (1975) cited by the Plaintiff, the court found an agreement between the parties incorporated into the decree was enforceable, even though the children it concerned had reached their majority, and without which the court would not have had the power to make the decree that resulted from the incorporation of the agreement. The McClain court quoting with approval stated:
"Where parties separate and by contract, as here, settle the right of their minor children for support and maintenance and such contract is approved by the trial Judge and made a part of a final divorce decree, the courts will enforce the contract as made by them." Gray v. Gray, 222 Ga. 641, 151 S.E.2d 774 (1966).
McClain at 563.
In the contract as made by Nancy and Mertland, Mertland agreed to child support, medical expenses and educational expenses "until said child reaches her majority, marries or becomes self-supporting." Under Georgia law, without that agreement between the parties the court would not have had the authority to require Mertland to pay the medical and educational expenses of Marianne after she reached the age of eighteen. Accordingly, since in our prior finding of fact we had the documents before us, and the Chancellor had the documents in question before him, we are unable to say there was a conflict between the property settlement agreement and the final decree.
We will next consider both the Plaintiff's and the Defendant's issues as to whether and when marianne Hedges became self-supporting. The Plaintiff asks this court to overrule the Chancellor's finding that Marianne became self-supporting on January 18, 1985 by reason of an inheritance from her grandmother. The Defendant, on the other hand, contends this court should find Marianne became self-supporting upon or before she reached age eighteen by reason of the income she received from Le Grande Kelly trust. We find no merit in either contention and affirm the Chancellor's decision. The Chancellor held:
It is admitted pursuant to the request for admissions that Marianne Hedges is the recipient, either in trust or outright of assets having a value not less than five hundred thousand dollars under the will of Mary B. Mallon.
The will of Mary B. Mallon has been introduced as an exhibit, specifically Exhibit 31, and it provides that Marianne Hedges and American National Bank will serve as co-trustees of the trust for the benefit of Marianne Hedges.
It is likewise clear from the income that she has received since January of 1985, that she is in fact no longer financially dependent upon anyone. She is, of course, over the age of majority, no longer subject to the custodial control of either Nancy Hedges or Mertland McClain Hedges.
The Court therefore finds that she is and has been self-supporting since January 1985, and that Mertland McClain Hedges has no obligations for her support after January 1985, due to the fact that she is self-supporting.
In her brief the Plaintiff challenges the propriety of the court's considering the request for admissions. The record reveals the Defendant's First Request for Admissions was submitted to Plaintiff's counsel in September 1983; they were filed with the trial court in September 1985. The Defendant's First Request for Admissions were introduced and made an exhibit at trial by the Plaintiff who is protesting their consideration by the Court. There was no objection in the record to their admission by either party. Even if the request for admissions was not properly before the court, we find there is ample other evidence in the record to support the court's finding.
"Self-supporting" is defined in Webster's New Universal Unabridged Dictionary 1647 (2nd Ed. 1983) as "supporting oneself or itself."
"Support" is defined in Black's Law Dictionary 1291 (5th Ed. 1979) as:
That which furnishes a livelihood; a source or means of living; subsistence, sustenance, or living. In a broad sense the term includes all such means of living as would enable one to live in the degree of comfort suitable and becoming to his station of life. It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expense, or other proper cognate purposes; also, proper care, nursing, and medical attendance in sickness, and suitable burial at death.
By virtue of her grandmother's will Marianne did become financially independent upon Mrs. Mallon's death. She had also passed her eighteenth birthday and was no longer under the control of either parent. Prior to her grandmother's death, Marianne was not financially independent, even though she was the recipient of funds from the trust, which were used to pay her medical and educational expenses. There is no evidence in the record that trust funds were advanced on Marianne's request. Until her grandmother's death, she had no control of any funds and was not financially independent or self-supporting.
The Plaintiff insists the trial court erred in allowing a portion of Mr. Maurice Martin's discovery deposition to be read at trial. Mr. Martin was the trust officer with American National Bank and Trust, now retired, who handled the Le Grande Kelly trust for years. A letter was filed which stated Mr. Martin would not be in Chattanooga on the date of the trial due to a business trip which had been planned three months previously. The court allowed the reading of a portion of the deposition by the Defendant and the Plaintiff was allowed to also read a portion of it.
The trial court could have allowed the reading of the deposition under either T.R.C.P. 32.01(3)(B) or (E). "The admissibility or exclusion of evidence rests within the sound discretion of the trial court which should be reversed only for abuse of that discretion." Austin v. City of Memphis, 684 S.W.2d 624, 634 (Tenn. App. 1984). We find no abuse of discretion of the trial court in allowing a portion of the deposition to be read. See also, Painter v. Toyo Kogyo of Japan, 682 S.W.2d 944 (Tenn. App. 1984).
Even if it had been error for the court to have admitted the reading of a portion of the deposition, the admission of improper evidence of a fact in issue is harmless when the verdict or judgment is supported by sufficient competent evidence. Pennsylvania R. Co. v. Naive, 112 Tenn. 239, 79 S.W. 124 (1924); Berke v. Chattanooga Bar Association, 58 Tenn. App. 636, 436 S.W.2d 296 (1968). In this instance, there was other sufficient competent evidence to support the judgment.
The Plaintiff and Defendant both insist the trial court should have made a finding as to whether Sarah Lawrence College was reasonably suited to the needs of Marianne and to the Mertland's economic and social status. The Plaintiff requested the trial court to make a finding of whether or not Sarah Lawrence College was reasonably suited to the educational needs of Marianne. The trial courts declined to make any determination of this issue "in view of the Court's Disposition of other issues." The Plaintiff requests this court to make that determination. The trial court also declined on the same grounds to determine the college "was not suited to the social and economic status of the Defendant, and that the Defendant was not financially able to pay tuition at Sarah Lawrence College . . . . " The Defendant asserts that issue is pretermitted by the holding of the trial court. Generally, Appellate courts will not decide pretermitted issues, however, if this court did decide the opine on the issue it would have to include whether Sarah Lawrence College was reasonably suited to Mertland's economic and social status, which we decline to do.
Under T.R.C.P. 52 the trial court is required to find the facts and state its Conclusions of law. Although the court's failure to comply with a request before the rendition of judgment is grounds for reversal and remandment for a new trial, see, Stephens v. Mason, 99 Tenn. 512, 42 S.W. 14 (1897), we do not find it appropriate in the case at bar. it is not incumbent on the Judge to find immaterial facts. See, Jenkins v. Jenkins, 11 Tenn. App. 142 (1929). In view of the trial court's determination of the other issues in the case at bar, it was not obligated to make further findings of fact.
We affirm the decree of the Chancellor and the cost of this appeal is taxed to the Plaintiff-Appellant.
Clifford E. Sanders, J.
James W. Parrott, P.J., Houston M. Goddard, J., concur.
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