Teresa Lynn Kidwell Atkins v. Ronal Lee Atkins ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 19, 2002 Session
TERESA LYNN KIDWELL ATKINS v. RONAL LEE ATKINS
Appeal from the Chancery Court for Union County
No. 3620 John D. McAfee, Judge
FILED DECEMBER 19, 2002
No. E2001-02043-COA-R3-CV
D. MICHAEL SWINEY, J., concurring in results only.
I concur with the majority’s decision to affirm the Trial Court’s judgment not to
enforce the Reconciliation Agreement. The basis for my affirmance, however, would be the Trial
Court’s finding of “bad faith” by the Husband with regard to the Reconciliation Agreement. I
believe the record more that adequately supports the Trial Court’s finding, and I believe the
Reconciliation Agreement should not be enforced for that reason. I, however, do not agree with the
majority’s holding that “a reasonable time for performance had passed when Wife initiated the
instant divorce action” and, therefore, the Reconciliation Agreement was no longer enforceable by
either party. The very event contemplated by the Reconciliation Agreement, “any subsequent
Divorce Suit. . .”, has come to pass after performance by both parties when they reconciled. I agree
with the majority that this contract should be evaluated under general contract principles. See Minor
v. Minor, 863 S.W.2d 51, 54, (Tenn Court App. 1997). This being so, I see no reason that the mere
passage of time after performance by the parties under the contract, their reconciliation, relieves Wife
from this one particular term of the Reconciliation Agreement. As stated, I do concur with the
majority’s ultimate decision affirming the Trial Court’s refusal to enforce the Reconciliation
Agreement.
___________________________________
D. MICHAEL SWINEY, JUDGE