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10/24/86 NANCY KELLY HEDGES v. MERTLAND MCCLAIN

October 24, 1986

NANCY KELLY HEDGES, PLAINTIFF-APPELLANT
v.
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

Sanders, J.

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 ...


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