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IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
January 4, 2005 Session MARY TAYLOR LOPEZ v. DANNY HOLBROOK TAYLOR ET AL.
Appeal from the Circuit Court for Wilson County No. 12524 John D. Wootten, Jr., Judge

No. M2003-02481-COA-R3-CV - Filed December 28, 2005

This appeal involves a dispute between divorced parents over one of their son's college expenses. Their older son became eligible for a substantial tuition discount after his father was employed by the university where he was enrolled. However, the father and son concealed the father's employment and the son's discount from the mother and actually sent her statements that did not reflect the discount. The mother paid one-half of the expenses reflected in these statements until she discovered the tuition discount. She then filed suit against her former husband and her son in the Circuit Court for Wilson County alleging breach of contract and fraud. She also sought a declaration regarding her continuing obligation to pay her son's college expenses. Following a bench trial, the trial court concluded that the father had breached the marital dissolution agreement and ordered the father to pay the mother $2,737.01. The court also found that the mother had breached the marital dissolution agreement by declining to pay her son's college expenses after discovering the tuition discount and ordered her to resume paying her share of these expenses. The mother appealed. We have concluded (1) that the father committed a material breach of the marital dissolution agreement, (2) that the father and the son engaged in fraudulent conduct by concealing the tuition discount from the mother and then pocketing her overpayments, (3) that the mother did not breach the marital dissolution agreement when she stopped paying her son's college expenses, and (4) that the trial court erred in calculating the amount of the mother's overpayment. Accordingly, we have determined that the mother is entitled to recover $3,590 from the husband and that the actions of the father and son warrant terminating her obligation to pay the son's college expenses. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part And Reversed in Part WILLIAM C. KOCH , JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and FRANK G. CLEMENT , JR., JJ., joined. Brad W. Hornsby and Aaron S. Guin, Murfreesboro, Tennessee, for the appellant, Mary Taylor Lopez. Gregory D. Smith, Nashville, Tennessee, for the appellees, Danny Holbrook Taylor, Adam Holbrook Taylor, and Phillip Anthony Taylor.

OPINION I. In October 1992, the Wilson County General Sessions Court granted Danny Taylor a divorce from Mary Taylor (now Mary Taylor Lopez) on the ground of irreconcilable differences. In the marital dissolution agreement that was incorporated into the final decree, the parties agreed to joint custody of their two sons, aged ten and seven, with Ms. Lopez as the primary residential parent. The parties also agreed that they would "equally pay the children's college education including tuition, books, school dues and room and board while they attend college." Following the divorce, the parties' children apparently began residing with Mr. Taylor, and Ms. Lopez began paying child support. Either in late 1999 or early 2000, Mr. Taylor filed a petition to increase and extend Ms. Lopez's child support obligations. Ms. Lopez responded by requesting a reduction in her child support because the parties' oldest child, Adam Taylor, was about to turn eighteen. In an order dated March 29, 2000, the court denied Mr. Taylor's petition and adjusted Ms. Lopez's child support payments effective on Adam Taylor's eighteenth birthday. The court also clarified the parties' obligations with regard to paying for their children's college educations. The order specifically stated that: the Petitioner [Mr. Taylor] and Respondent [Ms. Lopez] shall both be required to pay one-half of the college expenses for the parties' children, as ordered by the Final Decree of Divorce. This shall include one-half of the child's tuition, books, school dues, and room and board. That the child shall establish a checking account at a National Bank of his choosing into which the parties will deposit their one-half of the amounts necessary to pay for tuition, school dues, and room and board. The child shall, with the assistance of the Petitioner, provide information pertaining to the bank account, and documentation of the exact amount of these expenses to the Respondent in a timely manner so that the appropriate sums can be deposited to said bank account within fifteen (15) days of their receipt. Costs for books shall be initially paid by the child, or by the Petitioner, who shall then provide Respondent with copies of the receipts, and she shall then reimburse the proper amount to his account, or to the Petitioner, within fifteen (15) days of the date she receives such receipts. The order also required each party to provide $100 per month for the child's "entertainment and food expenses." In August 2000, Adam Taylor enrolled at David Lipscomb University following his graduation from high school. In December 2000, Mr. Taylor became employed by David Lipscomb University as its Executive Vice President for Financial Affairs. One of the employment benefits -2-

Mr. Taylor received was that his dependents became eligible to receive substantial tuition discounts if they attended David Lipscomb University.1 Mr. Taylor and Adam Taylor decided not to inform Ms. Lopez that Mr. Taylor was employed at David Lipscomb University or that Adam Taylor would be paying a discounted tuition. Their plan succeed for four semesters. Adam Taylor's net expenses for the Fall 2000 semester were $5,764.2 Mr. Taylor prepared a letter for Adam to send to Ms. Lopez, and Ms. Lopez promptly deposited $2,882 into Adam's account. Adam Taylor was entitled to a 25% tuition discount in the Spring 2001 semester. Despite the fact that his net expenses were $4,624, Mr. Taylor prepared a letter for his son to send Ms. Lopez stating that his expenses were $5,944. Believing that amount to be accurate, Ms. Lopez deposited $2,972 into Adam's account. Thereafter, Mr. Taylor paid $2,312 toward his son's college expenses, and Adam Taylor wrote his father a check for $632.50

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