Ishmael Mace v. Phyllis Mace ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 23, 2002 Session
ISHMAEL H. MACE v. PHYLLIS C. MACE
An Appeal from the Circuit Court for Shelby County
No. 130557 R.D. Karen Williams, Judge
No. W2001-00574-COA-R3-CV - Filed April 15, 2002
This is a post divorce action to recover a child support arrearage. The parties' original
Pennsylvania divorce decree required that the father pay child support for their three children. Under
the foreign decree, the support was not to be reduced on a pro rata basis as each child reached
majority, but simply end when the youngest child reached majority. This decree was later
domesticated in Tennessee, then modified to increase the monthly child support obligation. The
father did not pay. The trial court found him in contempt and ordered him to pay the arrearage. The
father filed a motion to alter or amend, arguing that there should be a pro rata reduction as each child
reached the age of majority, or at least a pro rata reduction of the amount of the Tennessee
modification. This was denied. The father now appeals. We affirm, finding that the father’s child
support obligation remains subject to the provision in the original foreign decree stating that the
child support would not be reduced pro rata as each child reached majority.
Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.
HOLLY K. LILLARD, J., delivered the opinion of the court, in which ALAN E. HIGHERS, J.(by separate
dissent) and DAVID R. FARMER , J., joined.
Mimi Phillips, Memphis, Tennessee, for the Appellant Ishmael H. Mace
Phyllis H. Mace, Pro Se
OPINION
This is a post-divorce action to recover a child support arrearage. Plaintiff/Appellee Phyllis
H. Mace ("Mother") and Defendant/Appellant Ishmael H. Mace ("Father") were married
approximately sixteen years and had three minor children at the time of the divorce, Melanie, Ashley
and Lyndsay. On May 15, 1989, the couple was divorced in Pennsylvania. Pursuant to the
Pennsylvania divorce decree, based on a marital dissolution agreement, Father was to pay $1200 per
month in child support. Under the terms of the Pennsylvania decree, the child support obligation was
not to be decreased pro rata as each minor child reached the age of majority. The child support was
to cease altogether upon the youngest daughter, Lyndsay, graduating from high school.
After the divorce, Mother moved to Memphis, Tennessee. On July 12, 1991, Mother had the
Pennsylvania decree domesticated in Tennessee. On August 1, 1991, the Tennessee trial court
increased the amount of Father’s child support obligation from $1200 to $1500 per month. The
Tennessee order did not otherwise modify the original foreign decree.
On August 25, 2000, the Tennessee trial court entered an order of contempt against Father
for an arrearage in child support of $36,176. Father made a motion under Rule 59.04 of the
Tennessee Rules of Civil Procedure to alter or amend the judgment, arguing that since the order of
child support was domesticated in Tennessee, it should be subject to a reduction on a pro rata basis
as each child reached majority. This motion was denied by the trial court. Father now appeals the
trial court’s denial of his motion to alter or amend.
On appeal, Father contends he should not be required to pay the entire arrearage in child
support. He notes that the original foreign decree, requiring him to pay $1200 per month, not to be
reduced pro rata as each child reached majority, was a consent order based on a marital dissolution
agreement. This foreign decree was then domesticated in Tennessee and modified to increase the
child support obligation to $1500 per month. Father argues that he agreed to forego any pro rata
reduction in the child support only at the original amount of $1200 per month. Since the amount was
increased to $1500 per month, Father maintains, he should be entitled to a pro rata reduction in the
amount as each child reached majority. In the alternative, Father argues that the pro rata reduction
should apply to the amount of increase in child support, the $300 difference between the original
$1200 per month and the modified amount of $1500 per month.
Because this case was tried by the trial court without a jury, we review it de novo upon the
record with a presumption of the correctness of the findings of fact by the trial court. See Tenn. R.
App. P. 13(d). Questions of law are reviewed de novo, with no presumption of correctness.
Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996). Interpretation of the
Pennsylvania and Tennessee orders involve questions of law to which no presumption of correctness
attaches.
On appeal, Father relies on Clinard v. Clinard, No. 01-S-01-9502-CV0021, 1995 WL
563858, at *2 (Tenn. Sep. 25, 1995), petition for rehearing denied, 1995 Tenn. LEXIS 665 (Tenn.
Nov.25, 1995), substitute order entered by 1995 Tenn. LEXIS 734 (Tenn. Dec. 4, 1995), in which
the Tennessee Supreme Court declared that a parent has no legal duty to support a child once the
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child reaches the age of majority.1 From this Father argues that at least the Tennessee modification
of $300 per month should be reduced as each child reaches eighteen. This reliance is misplaced.
Whether a parent has a legal duty to support a child upon that child reaching adulthood is not the
issue. The issue in this case involves interpretation of the original Pennsylvania decree, as well as
the effect of the subsequent Tennessee orders domesticating the decree and modifying the amount.
The original Pennsylvania decree states clearly that “said sum ($1200) will be not be reduced as each
of said daughters attains the age of eighteen (18) years, but will terminate completely upon the date
of graduation from high school of the youngest daughter, Lyndsay.” Generally when “the husband
wife contract with respect to the legal duty of child support, upon approval of that contract, the
agreement of the parties becomes merged into the decree and loses its contractual nature.” Penland
v. Penland, 521 S.W.2d 222, 224 (Tenn. 1975). Therefore, regardless of whether this order was
entered by consent, it remains a court order, subject to “the continuing statutory power of the Court
to modify its terms when changed circumstances justify.” Id. When this order was domesticated
and modified, the only change to the original order of divorce was to increase the amount of child
support Father was obligated to pay. There was no modification of the language in the original
decree stating that the amount of child support would not be reduced as each child reached majority.
Indeed, the record does not indicate that Father even sought a modification of the original decree
regarding pro ration.
The dissent correctly notes that a child support obligation in excess of that which is legally
mandated remains “contractual” in nature even though it is incorporated into the final divorce decree.
See Penland, 521 S.W.2d at 225 (Tenn. 1975). Since a parent generally cannot be ordered to pay
child support for an adult child, any obligation undertaken to pay support for a child beyond the date
that child reaches the age of majority would be contractual only and not subject to revision by the
courts. Bryan v. Leach, No. 91-540, 2001 Tenn. App. LEXIS 421, at *36 (Tenn. Ct. App. Jun 5,
2001).
Had Father shown that the $1500 per month child support obligation was in excess of the
amount of child support that would have been justified for one child in light of Father’s net income,
we would be required to consider this fact in determining whether the provision stating there would
be no pro ration of the amount of child support is applicable to the $300 per month increase in child
support. In this case, however, Father fails to show, or even allege, that the amount of monthly child
support ordered by the trial court exceeds that which would have been required under the child
support guidelines for the remaining minor child. See Rutledge v. Barrett, 802 S.W. 2d 604, 605
(Tenn. 1991) (finding that where circumstances justify the original total amount of support for the
remaining minor children, a trial court is not obligated to apply pro ration to a past award). Since
the conclusion reached by the dissent is premised on the assumption that the $1500 per month child
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W e note tha t Clinard is designated as “not for publication” and may, therefore, only be cited as p ersuasive authority.
See Tenn. R. Sup. Ct. R. 4 (H)(1). H owever, Fa ther’s asse rtion that a pare nt has no legal duty to support a child once
the child reaches the age of majority is settled law in T ennessee. See, e.g., Hawkins v. Hawkins, 797 S.W .2d 897 (T enn.
Ct. App. 1990 ).
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support obligation is “above the legal mandates,” and Father has not proven or even alleged this fact,
we respectfully decline to reach this conclusion.
Additionally, Father relies upon Tennessee Code Annotated § 36-5-101(a)(1), in effect at the
time of modification, which provided “unless the court specifically orders otherwise, any order
which provides for the support of two or more persons shall be deemed prorated in equal shares
among such persons.” This statute has since been repealed. Regardless, it has no application to this
case since the Pennsylvania order specified that there would be no pro rata reduction.
Thus, the provision of the original Pennsylvania decree, stating that the amount of child
support would not be reduced pro rata as each child reached majority, remained in effect when the
Tennessee trial court modified the amount of Father’s obligation. Consequently, Father must pay
the entire arrearage ordered by the trial court.
The decision of the trial court is affirmed. Costs on appeal are taxed to the Appellant,
Ishmael H. Mace, and his surety, for which execution may issue, if necessary.
___________________________________
HOLLY KIRBY LILLARD, JUDGE
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