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Wunder v. Wunder

Court of Appeals of Tennessee, Nashville

December 22, 2014

DANIEL J. WUNDER
v.
KAREN ANN WUNDER

Session December 03, 2014

Appeal from the Chancery Court for Sumner County No. 2013DM379 Tom E. Gray, Chancellor

David W. Camp, Jackson, Tennessee, for the appellant, Karen Ann Wunder.

Michael W. Edwards and Russell E. Edwards, Hendersonville, Tennessee, for the appellee, Daniel J. Wunder.

Arnold B. Goldin, J., delivered the opinion of the Court, in which J. Steven Stafford P.J., W.S. and Kenny Armstrong J. joined.

MEMORANDUM OPINION [1]

Arnold B. Goldin, Judge

This is a post-divorce action. The current appeal arises from an action for civil contempt for the failure to pay child support as provided by the final decree of divorce and marital dissolution agreement ("MDA") incorporated therein. The facts relevant to this appeal are not disputed.

Daniel J. Wunder ("Father") and Karen Ann Wunder ("Mother") were married in 1991; two children were born of the marriage in March 1994 and August 1996. In 1999, Father filed a petition for divorce in the Chancery Court for Madison County. By final decree entered May 5, 1999, the trial court declared the parties divorced pursuant to Tennessee Code Annotated § 36-4-129. In its May 1999 order, the trial court found that the parties had entered into an MDA that was reasonable and proper under the circumstances. The trial court ratified and confirmed the MDA and incorporated it into the court's order "as fully as if copied verbatim."

Pursuant to the MDA, custody of the parties' minor children was vested with Mother. Father agreed to pay child support in the amount of $4, 000.00 per month, payable on the 15th day of each month beginning May 15, 1999. Father additionally agreed to fund a college trust account for the children in the amount of $800.00 per month per child. The Wunders' MDA provided that "modification or waiver of any of the provisions of [the] agreement shall be effective only if made in writing and executed with the same formality of [the] agreement." It further provided that the "[f]ailure of either party to insist upon strict performance of any of the provisions of [the] agreement shall not be construed as a waiver of any subsequent default of the same or similar nature." The MDA also contained a specifically numbered provision titled "Reduction of Child Support." That provision stated:

The parties to this agreement affirmatively acknowledge that no action by either of these parties, individually or acting in concert with one another, will be effective to reduce the child support set forth in this agreement after the due date of each payment, and further the parties understand that Court approval must be obtained before child support can be reduced, unless such payments are automatically reduced or terminated by the terms of this agreement.

In November 1999, Father filed a motion to modify the final decree. In his motion, Father asserted that his income had decreased substantially as a result of a change in employment. He prayed the court to decrease his child support obligation to the amount provided by the child support guidelines and to reduce his obligation to fund the children's college fund. Following a hearing in January 2000, the trial court reduced Father's child support obligation to $3, 194.00 per month and reduced his obligation to fund the children's college fund to $485.00 per month for both children, to be allotted equally. The trial court stated that the reduction was "temporary" and ordered Father to pay support as ordered "until further orders of the [c]ourt." It also stated that "[a]ll other portions of the Martial Dissolution Agreement shall remain the same." The parties' eldest child reached the age of 18 in March 2012 and graduated from high school in May 2012. Father unilaterally reduced his child support payments to $2, 000 per month upon the child's graduation from high school.

In January 2013, Mother filed a motion for civil contempt asserting that, beginning May 2012, Father had failed to pay child support as ordered by the court. She asserted that Father was gainfully employed and able to pay child support as ordered, that his failure to pay child support was intentional and willful, and that he was in arrears in an amount not less than $17, 637.42. She prayed for a finding of contempt, a judgment in the amount of the arrearage plus interest at the statutory rate retroactive to May 2012, attorney's fees and costs. It is undisputed that beginning February 2013, Father increased his child support payments to $2, 100.00 per month and he also paid Mother $900.00 in February 2013.

Upon motion by Father and over Mother's objection, the matter was transferred to the Chancery Court for Sumner County in September 2013. Following a hearing in November 2013, by order entered December 16, 2013, the trial court found that Father did not file a petition to modify his child support obligation but "took it upon himself to reduce his child support obligation when the son . . . graduated from high school[, ]" which was approximately two months after the child attained the age of majority. The trial court further found that Father "made a proration reducing the [c]ourt ordered support." The trial court concluded that, in Tennessee, a parent does not have a legal duty to support a child after the child attains the age of majority and graduates from high school and that Father accordingly did not have an obligation to pay child support for the eldest child after May 2012. Although it does not appear from the record before us that the trial court determined whether the prorated child support amount paid by Father complied with the child support guidelines, it nevertheless determined that he was not in arrears. ...


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