author: CHARLES D. SUSANO, JR., J.,

text:
    Stacey G. HILL v. Donna Elizabeth Frazier HILL.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    March 23, 2004 Session.
    May 4, 2004.
    Permission to Appeal Denied by Supreme Court Nov. 15, 2004.
    Glenna M. Ramer, Chattanooga, Tennessee, for the appellant, Stacey G. Hill.

      William H. Horton, Chattanooga, Tennessee, for the appellee, Donna Elizabeth Frazier Hill.
   OPINION

CHARLES D. SUSANO, JR., J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J. (E.S.), and WILLIAM H. INMAN, SR., J., joined.

Donna Elizabeth Frazier Hill (“Mother”) filed a complaint against Stacey G. Hill (“Father”) seeking to modify the parties’ Permanent Parenting Plan (“the parenting plan”). Father responded and filed a counterclaim. Mother proposed a revised plan that would reduce Father’s visitation time and increase his child support obligation. The trial court denied Mother’s revised plan with respect to the oldest child, but granted her proposed changes with respect to the other children. The trial court designated Father as the primary residential parent of the oldest child and increased his child support obligation for the younger children; however, the trial court refused to order Mother to pay child support for the oldest child on the ground that Father “has not required the [oldest] child to comply with the original Parenting Plan based on the child’s expressed desires.” Father appeals, arguing that the trial court erred in deviating from the Child Support Guidelines (“the Guidelines”) based upon the ground espoused by the court. We vacate so much of the trial court’s order as absolves Mother of any obligation to support the oldest child in the custody of Father.

I.

The parties were married on May 30, 1980. Three children were born to their union — Haley Brooke Hill (“Haley”) (DOB: September 27, 1988), Caden Brock Hill (“Caden”) (DOB: December 31, 1991), and Whitney Leigh Hill (‘Whitney”) (DOB: December 31, 1991). On February 18, 2000, the trial court awarded Father an absolute divorce under TenmCode Ann. § 36-4-101(11) based upon Mother’s stipulation that she was guilty of inappropriate marital conduct. The court also adopted the parties’ Marital Dissolution Agreement as well as the parenting plan, which plan designated Mother as the primary residential parent of the three children. Under the parenting plan, the children were to reside with each parent on an alternating week-to-week basis, and Father was ordered to pay child support to Mother in the amount of $682 per month.

On July 6, 2001, Mother filed a complaint to modify the parenting plan, alleging that “there is no consistency” as a result of Father’s “constant rescheduling of his time with the children.” Mother’s proposal to the court would reduce Father’s weekly visitation to every other weekend and increase his child support obligation to $1,483 per month. Haley, who was nearly 13 at the time, did not want Mother to request a modification of her visitation time with Father. Apparently in response to Mother’s filing of the complaint and other events, Haley subsequently expressed her desire to end all contact and visitation with her mother. Accordingly, in his counterclaim, Father requested, among other things, that the trial court (1) allow Haley to live with him “full-time” and (2) amend his child support obligation accordingly.

On January 3, 2002, Mother filed a motion “for an order enforcing the results of mediation as to counseling for the parties and [Haley]” or to compel Father and Haley, among other things, to participate in family and/or individual counseling. Mother also asked the trial court to compel Father to make Haley available for visitation at least “every Wednesday and at such other times as [Mother] and the counselor ... believe is reasonably necessary for the well being of [Haley].” On March 19, 2002, the trial court ordered Haley to participate in counseling with Ronald L. Wigley, Psy.D., and reserved the issue as to whether to request a report from him.

On April 3, 2003, Mother amended her complaint to modify, alleging that Father “violated the [the parenting plan] by encouraging and allowing the parties’ child, Haley, to move in with him and to refuse to comply with the [p]arenting [p]lan.” Some three months later, the trial court held a hearing and received testimony from a number of witnesses, including Father, Mother, and Dr. Wigley, the clinical psychologist who had counseled Haley. The trial court also heard Haley’s testimony in his chambers.

After the hearing, the trial court issued an order, which contained the following findings:

The Court finds that the daughter, Haley Hill, had moved in with her father in July 2001 and refused to return to her mother’s home after [Mother] filed her original petition. Contact since that date has been minimal, at the insistence of Haley Hill. The Court finds that there is no rational explanation or understandable reason by the Court for Haley Hill’s conduct.
It is further the finding of the Court that the parties. initially attempted to mediate the matter unsuccessfully, and thereafter, upon the request of [Mother], the Court had an in-chambers session with Haley Hill and ordered the parties to counseling with Dr. Ron Wigley. It is the finding of the Court that Dr. Ron Wigley has expressed reservations about “forcing” Haley Hill, who is now age 14, to return to her Mother, pursuant to the original Permanent Parenting Plan.

In its order, the trial court designated Father as the primary residential parent of Haley and approved Mother’s revised plan with respect to Caden and Whitney. The trial court’s order also stated that

it is the Court’s determination and order that [Mother] should have visitation time with her daughter Haley Hill and Haley Hill is urged to participate in such visitation on no less than an alternating weekend basis. The Court declines to make any further order with respect to visitation at this time as it relates to Haley Hill.
With respect to payment of child support by [Mother] to [Father] for Haley Brooke Hill, the Court finds that since [Father] has not required the child to comply with the original Parenting Plan based on the child’s expressed desires as to contact with [Mother], no support should be paid by [Mother] to [Father] for Haley Hill.

(Paragraph letter designations omitted).

II.

Father raises the following issue for our review:

Whether the trial court erred in failing to award child support to [Father] based upon a finding that [Haley’s] refusal to visit with [Mother] was reason to deviate from the Child Support Guidelines?

In this non-jury case, our review is de novo upon the record of the proceedings below, with a presumption of correctness as to the trial court’s factual determinations, unless the evidence preponderates against those findings. Tenn. R.App. P. 13(d); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993). The trial court’s conclusions of law, however, are accorded no such presumption. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996).

III.

Under Tenn.Code Ann. § 36-5-101(e)(1)(A) (2003), when determining the appropriate level of child support,

the court shall apply as a rebuttable presumption the child support guidelines as provided in this subsection. If the court finds that evidence is sufficient to rebut this presumption, the court shall make a written finding that the application of the child support guidelines would be unjust or inappropriate in that particular case, in order to provide for the best interest of the child(ren) or the equity between the parties. Findings that the application of the guidelines would be unjust or inappropriate shall state the amount of support that would have been ordered under the child support guidelines and a justification for the variance from the guidelines.

When the trial court decides to deviate from the Guidelines,

primary consideration must be given to the best interest of the child(ren) for whom support under these guidelines are being utilized in the case before the court. Written reasons justifying deviation must be included in the order allowing the deviation, together with a statement of what the support would have been under the guidelines without the deviation.

Tenn. Comp. R. & Regs. ch. 1240-2-4-.04(5). According to the Guidelines, deviation is appropriate in the following specified cases:

(2) Deviation from the guidelines may be appropriate in other cases when the court finds it is in the best interest of the children) including, but not limited to, the following:.
(a) In cases where the Department of Children’s Services has taken custody of the children) [pursuant to a neglect, dependency, or abuse action] ...; and/or
(b) In cases where physical custody of the child(ren) is more equally divided between the parties than occurs in a situation where one party has an average amount of overnight visitation as defined in [Tenn. Comp. R. & Regs, ch.] 1240-2-4-.02(6).
(4) In instances of extreme economic hardship, such as in cases involving extraordinary medical needs not covered by insurance or other extraordinary special needs for the child(ren) of the obli-gor’s current family, [child(ren) living in the home with the obligor for whom the obligor is legally responsible] deviation from the guidelines may be considered in order to achieve equity between the parties when the court so finds.

Tenn. Comp. R. & Regs. ch. 1240-2-4-•04(2), (4).

In Jones v. Jones, 930 S.W.2d 541 (Tenn.1996), the Supreme Court addressed the issue of downward deviation pursuant to the framework of Tenn. Comp. R. & Regs. ch. 1240-2-4-.04(2) and (4). Id. at 543-46. The Court in Jones recognized that Tenn.Code Ann. § 36 — 5—101(e)(1) authorizes downward deviation from the Guidelines “in order to ensure equity between the parties”; however, the Court cautioned that the authority of a trial court “to do so must be considered in light of the provisions dealing with such deviation” found in Tenn. Comp. R. & Regs. ch. 1240-2-4-.04(2) and (4). Id. at 545. The Court explained that the Guidelines “expressly provide for downward deviation where the obligee has utterly ceased to care for the children); where the obligee clearly has a lower level of child care expense than that assumed in the [Guidelines; and where the obligor is saddled with an ‘extreme economic hardship.’ ” Id. “Although the rule does not purport to set forth an exhaustive list of instances in which downward deviation is allowed,” the Court explained that “these specific instances nevertheless are a powerful indication as to the types of situations in which it is contemplated under the [G]uidelines.” Id. (emphasis in original).

IV.

A.

Father argues that the trial court erred in refusing to order Mother to pay child support. He contends that Haley’s refusal to visit with her mother is insufficient, as a matter of law, to justify the trial court’s refusal. Father argues that the trial court “may have believed that [it] was holding [Father] responsible for Haley’s refusal to spend time with” Mother. However, Father argues that such an approach “actually harms” Haley because she “is being deprived of a right and benefit to which she is entitled.”

Mother argues that the trial court was justified in deviating from the Guidelines. Mother contends that it would be “unjust or inappropriate” to order her to pay child support because Father “intentionally interfered with the parenting plan” and “encouraged” Haley to end contact or visitation with her. Mother continues to argue that she should be relieved of her child support obligation because

[a] parent should not be permitted to substantially damage a child’s relationship with the other parent, obtain parental responsibility for the child as a result of the damaged relationship, and then receive full child support from the noncustodial parent when the child with a parent’s encouragement treats the noncustodial parent as nonexistent. Such a precedent would only encourage parents to use their children more than what already occurs in divorce and post-divorce proceedings.

B.

The Supreme Court in Rutledge v. Barrett, 802 S.W.2d 604 (Tenn.1991), emphasized that the purpose of child support payments “is to fulfill the non-custodial parent’s obligation to contribute to the child’s support.” Id. at 607 (citing Hester v. Hester, 59 Tenn.App. 613, 620, 443 S.W.2d 28, 31 (1968)) (emphasis in original). As a result, “the custodial parent’s conduct cannot extinguish the non-custodial parent’s legal responsibility.” Id. The court in Rutledge also recognized that a parent’s obligation to pay child support and the right to visitation “are not interdependent” and are “both intended for the benefit of the child.” Id. at 607 (emphasis in original).

While Rutledge did not discuss the impact, if any, of the then-recently adopted Guidelines upon the principle addressed in that case, we find nothing in the Guidelines, the relevant statutes, or caselaw, indicating the General Assembly intended a different result post-Guidelines. We continue to believe that the obligation of the obligor spouse to pay child support and that spouse’s right to visitation with a minor child “are not interdependent.” Id. at 607. A court has a multitude of remedies by which it can enforce both; but, generally speaking, a court is without authority to withhold one in order to enforce the other.

The Guidelines, as interpreted in Jones, clearly allow, in an appropriate case, for a downward deviation in child support. For example, a court is justified in deviating downward when the obligor spouse has more than the amount of visitation contemplated by Tenn. Comp. R. & Regs. ch. 1240-2-4-.02(6), see Tenn. Comp. R. & Regs. ch. 1240-2-4-.04(2)(b); or where the Department of Children’s Services has taken custody of children, see Tenn. Comp. R. & Regs. ch. 1240-2-4-.04(2)(a). “Instances of extreme economic hardship,” as defined in the Guidelines, can also be the basis for a downward deviation. See Tenn. Comp. R. & Regs. ch. 1240-2-4^.04(4). Jones makes it clear that these are not the only reasons that would justify a downward deviation. See Jones, 930 S.W.2d at 545. However, that case also makes it clear that “these specific instances nevertheless are a powerful indication as to the types of situations in which it is contemplated under the [Gjuidelines.” Id. (emphasis in original). We do not believe the trial court’s rationale for denying Father’s request for child support — Haley’s refusal to visit with her mother — is so similar to the “specific instances” expressly stated in the Guidelines as to be considered of the same type. Furthermore, we hold that the withholding of support in this case is not in the best interest of Haley. See Tenn. Comp. R. & Regs. ch. 1240-2-4- 04(5). The Guidelines contemplate that children will enjoy the fruits of the obligor spouse’s labor.

Accordingly, we hold that the trial court erred as a matter of law when it refused to order Mother to pay child support with respect to Haley. This case is remanded to the trial court for the setting of child support in accordance with the Guidelines.

C.

Mother raises the following issue on appeal:

Whether the Trial Court erred in failing to find [Father] in contempt for his refusal to comply with the parenting plan.

Determinations regarding contempt lie within the trial court’s sound discretion and are final, absent any plain abuse of that discretion. Hawk v. Hawk, 855 S.W.2d 573, 583 (Tenn.1993); Sherrod v. Wix, 849 S.W.2d 780, 786 (Tenn.Ct.App.1992). We find no abuse of discretion in the trial court’s refusal to find Father in contempt. The trial court found that Haley moved in with Father “and refused to return to her mother’s home” in July, 2001, the same month that Mother filed a complaint to modify the parenting plan. The trial court also found that “Dr. Ron Wigley has expressed reservations about ‘forcing’ Haley Hill, who is now age 14, to return to her Mother, pursuant to the original Permanent Parenting Plan.” Having found no abuse of discretion in this part of the trial court’s decision, we affirm the trial court on this issue.

V.

So much of the judgment of the trial court as directs that Donna Elizabeth Frazier Hill is not obligated to pay child support to Stacey G. Hill is hereby vacated. In all other respects, the trial court’s judgment is affirmed. This case is remanded to the trial court for further proceedings consistent with this opinion. Costs on appeal are taxed to the appellee, Donna Elizabeth Frazier Hill.

      . We refer to the children by their first names as did the parties. No disrespect is intended by this approach.

      . Caden and Whitney are twins.

      . Tenn.Code Ann. § 36-4-101 (2001) provides, in pertinent part, that
      [t]he following are causes of divorce from the bonds of matrimony:

      (11) The husband or wife is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper which may also be referred to in pleadings as inappropriate marital conduct;....

      . At a subsequent hearing, Haley testified before the court in chambers as follows:
      I was going on a mission trip, and before I went, my mom had told us before that she was going to file for custody of my brother and sister and I, where we would only see our dad ever other weekend. And I agreed.... Then I thought about it, and I told her, no, I don't want you to do that. She said, okay, I will not do it.
      So I leave for the mission trip, and I come back. And I had gone to my dad's after I got back, and when my mom picked me— or when I went to my dad’s, he told me that she had filed for custody of me, and I was really upset.

      . There is testimony in the record, which, if believed, would indicate that Mother is not entirely blameless in the breakdown of her relationship with Haley. However, we do not need to reach the trial court’s factual finding that "there is no rational explanation or understandable reason ... for Haley Hill’s conduct.” We say this because the trial court’s finding is not challenged on appeal and, more importantly, because we have determined that the trial court erred as a matter of law in holding that Mother was not obligated to pay child support due to her daughter’s refusal to visit with her.


source: Caselaw Access Project

author: HOLLY M. KIRBY, J.,

license: Public Domain

text:
    Amy Carlene Doyle HYNEMAN v. William Russell HYNEMAN.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    May 19, 2003 Session.
    Sept. 18, 2003.
    Permission to Appeal Denied by Supreme Court May 10, 2004.

      Stevan L. Black and Vickie Hardy Jones, Memphis, Tennessee, for the appellant, Amy Carlene Doyle Hyneman.
    Allan J. Wade, Memphis, Tennessee, for the appellee, William Russell Hyneman.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and ALAN E. HIGHERS, J., joined.

This is a divorce case. The husband filed a petition for divorce, and the wife filed a counter-claim for divorce on the grounds of inappropriate marital conduct and adultery. The husband initially admitted to inappropriate marital conduct and denied adultery. The husband later amended his pleadings to admit to adultery. Soon thereafter, the husband moved the trial court to grant a divorce to the wife based on the husband’s admitted inappropriate marital conduct and adultery. The wife objected, arguing that a divorce decree could not be entered at that time because no evidentiary hearing had been held and there was no stipulation by the parties. The trial court granted the husband’s motion and entered a decree granting a divorce to the wife. The wife now appeals. We reverse, concluding that, absent a mutual stipulation agreed upon by the parties, pursuant to Tennessee Code Annotated §§ 36-4-114 and 36-4-129, the trial court must conduct a hearing prior to entering a final decree of divorce. Therefore, we remand to the trial court for further proceedings.

PlaintiffiAppellee William Russell Hyne-man (“Husband”) and Defendant/Appellant Amy Carlene Doyle Hyneman (“Wife”) were married on October 31, 1988. The parties have two children born of the marriage, Amanda Carlene Hyneman (born April 16,1989) and Rachel Christine Hyne-man (born October 18,1994).

On November 5, 2001, Husband filed a complaint for divorce against Mother in Shelby County Chancery Court, alleging irreconcilable differences and inappropriate marital conduct. On January 17, 2002, Wife filed her answer and a counterclaim seeking a divorce, alleging that Husband was guilty of, among other things, adultery and inappropriate marital conduct. On February 21, 2002, Husband filed his answer to Wife’s counter-claim, denying adultery but admitting that he had engaged in inappropriate marital conduct. Also on February 21, 2002, Husband filed responses to Wife’s first request for admissions. In his responses, inter alia, Husband denied Wife’s request that he admit having had a sexual relationship with Caresse C. Mills (“Mills”).

On January 7, 2002, the trial court conducted a hearing on the limited issue of determining who would have temporary custody of the parties’ children. Both Husband and Wife testified at the hearing. The parties were not permitted to explore issues related to fault. When counsel for Wife attempted to ask questions related to Husband’s inappropriate marital conduct, the trial court disallowed the line of questioning, stating, “Counsel, you will get an opportunity when you deal with the divorce and some other things, but this is a very limited hearing.”

On April 8, 2002, a hearing was held on a variety of issues. No proof was presented. During the hearing, counsel for Husband stated that Husband wanted to amend his responses to the requests for admissions and admit to adultery. Contemporaneously, Husband’s counsel made a motion in open court for the trial court “to grant [Wife] a divorce ... on the grounds of adultery and that it be done so today....” Counsel for Wife objected vehemently and stated, “I’ve never heard of an opposing counsel moving for a divorce ... on behalf of the other party.” Wife’s attorney told the trial court that he was “not agreeing to any stipulation....” The trial court indicated that it would not rule on Husband’s request to grant a divorce until a formal amendment had been made to his pleadings.

On April 12, 2002, Husband filed a written motion for leave to amend his answer to Wife’s counterclaim, and to amend his response to Wife’s request for admissions. In that pleading, Husband requested that he be permitted to amend his answer to admit adultery and to amend his response to Wife’s request for admissions to admit a sexual relationship with Mills. On April 24, 2002, counsel for the parties appeared before the trial court. Apparently in reference to Husband’s previous motion that Wife be granted a divorce on the grounds of adultery, the following colloquy ensued between the trial judge and Wife’s counsel:

[COURT]: Counsel, one thing you are forgetting. Your client wants a divorce; is that correct?
[FRIEDMAN]: Your Honor, please, my client was not the original person who filed for divorce.
[COURT]: She cross-filed, right?
[FRIEDMAN]: That is absolutely correct.
[COURT]: She does want a divorce.
[FRIEDMAN]: Your Honor, please, all I can say is that we filed a cross-complaint for—
[COURT]: In the cross-file she asked for a divorce.
[FRIEDMAN]: In particular, I might add she did so because the initial filing of [Husband]—
[COURT]: I don’t care about that.
[FRIEDMAN]: — was fraudulent and fictitious.
[COURT]: There is going to be a divorce in this case.... Somebody is going to get one....
But I want you to understand if she wants a divorce and he is willing to give her a divorce — and I have explained to him if he comes in now and admits adultery or whatever other grounds, he has got to deal with the consequences of that as it relates to alimony and any other rights that Mrs. Hyneman has or what she is seeking.... But I can’t for the life of me figure out how anybody is going to be better off when we have two people seeking a divorce and we have one party agreeing to the most serious ground possible, one that I hesitate and I guess I would have to make a decision on.
[FRIEDMAN]: ... [Husband] isn’t doing [Wife] a favor in any manner, shape or form by admitting the truth.

Husband’s motion that Wife be granted a divorce was not decided at that hearing.

On May 7, 2002, Husband’s newly retained attorney, his counsel in this appeal, appeared before the trial court. Husband’s attorney asked the trial court to grant a divorce to Wife, rather than to Husband, in light of the fact that Husband had admitted adultery, and he submitted a proposed final decree of divorce to the trial court. The proposed decree, however, granted Wife a divorce on the grounds of inappropriate marital conduct, not adultery. Counsel for Wife again strongly objected to the proposed decree, because no evidentiary hearing had been held and no stipulation had been agreed upon by the parties. Wife argued that the entry of such a decree would be tantamount to a judgment on the pleadings, in violation of Tennessee law. This argument was rejected. On May 15, 2002, the trial court entered Husband’s proposed final decree of absolute divorce, granting a divorce to Wife based on Husband’s inappropriate marital conduct. The final decree provided that the parties had stipulated to the stated grounds for divorce and, therefore, the divorce was granted to Wife, pursuant to Tennessee Code Annotated § 36-4-129. The decree also stated that “any property acquired by either party through their own work and endeavor subsequent to the entry of this decree, excluding any property acquired with proceeds of the marital estate existing on the date of entry of this decree, shall constitute that party’s separate property.” The trial court made the order final and appealable pursuant Rule 54.02 of Tennessee Rules of Civil Procedure. Wife now appeals that order.

On appeal, Wife argues that the trial court’s grant of divorce without an agreed upon stipulation and without first hearing proof on the matter was in violation of Tennessee Code Annotated § 36-4-114. That statute provides:

36-4-114. Proof required. — If the defendant admits the facts charged in the bill or petition and relied upon as the ground for a divorce, or the bill is taken for confessed, the court shall, nevertheless, before decreeing a divorce, except a divorce on the ground of irreconcilable differences, hear proof of the facts alleged as aforementioned, and either dismiss the bill or petition or grant a divorce, as the justice of the case may require.

Tenn.Code Ann. § 36-4-114 (2001). Wife argues that this statute specifically requires the trial court to conduct an eviden-tiary hearing when the defendant admits to the allegations in the divorce petition. Consequently, she maintains, the trial court erred in this case by granting the divorce without such a hearing.

In response, Husband contends that the trial court was correct in concluding that the parties had stipulated to the grounds for divorce. Under these circumstances, he argues, the trial court was justified in granting the divorce without a hearing. In support, Husband cites section 36-4-129 of the Tennessee Code Annotated, which provides:

36-4-129. Stipulated grounds and/or defenses-Grant of divorce. — (a) In all actions for divorce ... the parties may stipulate as to grounds and/or defenses, (b) The court may, upon stipulation to or proof of any ground for divorce pursuant to § 36-4-101, grant a divorce to the party who was less at fault or, if either or both parties are entitled to a divorce, declare the parties to be divorced, rather than awarding a divorce to either party alone.

Tenn.Code Ann. § 36-4-129 (2001). Because he admitted to inappropriate marital conduct and adultery, Husband argues, there was no reason to present proof to the court on grounds for divorce. He claims that the effect of his admission was essentially a stipulation by the parties as to the grounds for divorce. Therefore, Husband maintains, the trial court was permitted to grant Wife a divorce without a hearing under section 36-4-129.

The trial court’s factual findings are reviewed de novo, with a presumption of correctness unless the preponderance of the evidence suggests otherwise. Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.1999); Tenn. R.App. P. 13(d). The trial court’s conclusions of law are reviewed de novo, with no such presumption. State v. Levandowski, 955 S.W.2d 603, 604 (Tenn.1997). “The search for the meaning of statutory language is a judicial function.... Statutory construction and the application of the statute to particular facts present legal questions.” State ex rel. Comm’r of Tramp, v. Medicine Bird Black Bear White Eagle, 63 S.W.3d 734, 754 (Tenn.Ct.App.2001) (citations omitted). Therefore, we will review issues relating to statutory interpretation de novo, with no presumption of correctness. See id.; Wilkins v. Kellogg Co., 48 S.W.3d 148, 151 (Tenn.2001).

We must determine whether the trial court was required under section 36-4-114 to hear proof on the facts prior to granting the divorce, or whether the trial court was authorized under section 36-4-129 to grant the divorce without hearing proof. In construing these two statutes, we must “ascertain and give effect to the intention and purpose of the legislature.” Carson Creek Vacation Resorts, Inc. v. State Dep’t of Revenue, 865 S.W.2d 1, 2 (Tenn.1993). If a statute is without ambiguity, we must apply the statute as written; we are not “at liberty to depart from the words of the statute.” Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 802-03 (Tenn.2000). Moreover, “[s]tatutes relating to the same subject or sharing a common purpose must be construed together (in pari materia), ‘in order to advance their common purpose or intent.’ ” Frye v. Blue Ridge Neuroscience Ctr., P.C., 70 S.W.3d 710, 716 (Tenn.2002) (quoting Carver v. Citizen Utils. Co., 954 S.W.2d 34, 35 (Tenn.1997)); see LensCrafters, Inc. v. Sundquist, 33 S.W.3d 772, 777 (Tenn.2000). Thus, such statutes are to be construed so as to effectuate the intent of the legislature and arrive at the most harmonious result possible. Frye, 70 S.W.3d at 716.

It is well-settled that, absent a stipulation by the parties, a divorce cannot be granted based only on the pleadings. McCarter v. McCarter, No. 03A01-9606-CV-000196, 1996 WL 625798, at *2 (Tenn.Ct.App. Oct.30, 1996). In McCarter, the husband filed a petition for divorce based on the wife’s inappropriate marital conduct. The opinion does not indicate whether the wife’s answer to the complaint admitted or denied the allegations in the petition. In any event, the husband filed a motion for a judgment on the pleadings. Id. at *1. The trial court held a hearing on the husband’s motion, and granted the husband a divorce on the grounds of inappropriate marital conduct “based on the testimony that the court did hear [at an unrelated pendente lite hearing] and part of which is contained in the pleadings.... ” Id. (quoting trial court’s opinion). The wife appealed, arguing that the trial court erred in granting husband a judgment on the pleadings. The appellate court agreed, opining that “[w]e cannot immediately perceive of a situation in an action for divorce where a judgment on the pleadings would be an appropriate procedure to obtain affirmative relief.” Id. at *2. Referring to Tennessee Code Annotated § 36-4-114, the appellate court held that it was “reversible error to award a divorce by a judgment on the pleadings even if coupled with the evidence taken at the pendente lite hearing.” Id. The court noted that the parties had not stipulated to the grounds for divorce under section 36-4-129. Id. at n. 2. The court observed that sections 36-4-129 and 36-4-114 were not in conflict, “since under the provisions of the former, the stipulations constitute evidence.” Id.

The case at bar is distinguishable from McCarter, in that Husband in this case admitted to adultery as alleged by Wife, but then asked the trial court to grant the divorce to Wife on the grounds of his own misconduct. Though Husband asked the trial court to grant Wife the relief she admittedly sought, Wife nevertheless wanted the trial court to hear proof regarding Husband’s adultery prior to any decision being rendered. The parties have not cited, nor has this Court found through its own research, a case presenting this factual situation. Thus, we must scrutinize the language in the statutes at issue.

The parties do not dispute that, under section 36-4-129, the trial court was authorized to grant the divorce to Wife “upon stipulation to or proof of any ground for divorce.... ” See Mumford v. Mumford, No. E2002-01338-COA-R3-CV, 2003 WL 21673675, at *4 (Tenn.Ct.App. July 14, 2003). In this case, there was no proof of any ground for divorce. The issue becomes, then, whether Husband’s admission of Wife’s allegation of his adultery and inappropriate marital conduct is considered a “stipulation” within the meaning of section 36-4-129.

Husband asserts that the parties, by their conduct, should be deemed to have entered into a “stipulation” under section 36-4-129 and, thus, no hearing was required. He argues that, under Rule 36.02 of the Tennessee Rules of Civil Procedure, any matter that is admitted in response to a request for admission is “conclusively established” and is the same as a stipulation for purposes of trial. Husband cites Tennessee Dep’t of Human Servs. v. Barbee, 714 S.W.2d 263 (Tenn.1986), in which the Court discussed the function of an admission. The Barbee court stated that an admission under Rule 36.02 “is comparable to an admission in pleadings or a stipulation drafted by counsel for use at trial.” Id. at 266. Utilizing that reasoning, Husband contends, his admission should be considered a “stipulation” to the grounds for divorce, because his admission dispenses with any issue to be decided at trial.

By definition a stipulation is an agreement “which is entered into mutually and voluntarily by the parties.” Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 701 (Tenn.Ct.App.1999). This Court has recently described the nature of a stipulation:

Parties may stipulate to questions of fact or legal strategies but may not stipulate to questions of law. Though a stipulation need not follow a particular form, its terms must be definite and certain in order to afford a proper basis for judicial decision. If the stipulation is ambiguous and uncertain in its terms, it should be disregarded by the courts. A stipulation should discuss the who, what, where and why of the contested matter, and specify the terms of the settlement and any conditions or sequence of events that attach thereto. Stipulations must be carefully constructed and drawn, and if they are not, they should not be incorporated in an order. Factors to consider in determining whether a stipulation was entered into properly are whether the party had competent representation of counsel, whether extensive and detailed negotiations occurred, whether the party agreed to the stipulation in open court, and whether, when questioned by the judge, the party acknowledged understanding the terms and that they were fair and equitable.

Stumpenhorst v. Blurton, No.W2000-02977-COA-R3-CV, 2002 WL 1751380, at * 4 (Tenn.Ct.App. Feb.27, 2002) (citations and quotations omitted). Thus, a stipulation requires a mutual understanding between the parties as to the specific matter agreed upon, in terms that are “definite and certain in order to afford a proper basis for judicial decision.” Id.

Husband would have us ignore the plain terms of section 36-4-114, which addresses the situation in which the defendant “admits the facts charged in the bill or petition and relied upon as the ground for a divorce,” and mandates that the trial court “shall, nevertheless, before decreeing a divorce, ... hear proof of the facts alleged .... ” Without question, the statutes must be interpreted in pan materia, and thus the meaning of “stipulation” in section 36-4-129 must be construed in light of the express terms of section 36-4-114. Under Husband’s interpretation, section 36-4-114 would be rendered a nullity.

In many instances, the defendant’s admission of an allegation in a complaint would have the same effect as a stipulation. Further, we acknowledge the need for judicial economy as well as the benefit of expediting the resolution of cases, and understand the trial judge’s impatience at a party’s insistence that the trial court permit further discovery and hear proof of an allegation that has been admitted. Nevertheless, in interpreting the term “stipulation” in section 36-4-114, we must construe it as requiring mutual assent, as opposed to an admission as the term is used in section 36-4-114, in order to give full effect to both statutes, consistent with the evident intent of the legislature.

Thus, Husband’s admission to Wife’s allegations in this case cannot be deemed a “stipulation” under section 36-4-129. Accordingly, section 36-4-114 requires that the trial court “hear proof of the facts alleged.... ” Therefore, the trial court below erred in entering the decree of divorce prior to hearing such proof.

Consequently, the decision of the trial court is reversed and the cause is remanded for a hearing in accordance with section 36-4-114, as well as any other proceedings not inconsistent with this Opinion, in the discretion of the trial court. We do not address the level of proof required at the hearing on remand under section 36-4-114. The proprietary of trial court’s award of attorney’s fees to Wife is not addressed in this appeal, as it was not part of the order made final and appealable under Rule 54.02 of the Tennessee Rules of Civil Procedure. Wife’s request for attorney’s fees on appeal is denied. All other issues raised on appeal are pretermit-ted.

The decision of the trial court is reversed, and the cause is remanded for further proceedings not inconsistent with this Opinion. Costs are to be taxed against the appellee, William Russell Hyneman, for which execution may issue, if necessary.

      . Initially, the complaint was filed by Husband pro se. Husband later obtained counsel, who filed a notice of appearance on December 18, 2001.

      . After the notice of appeal was filed, Wife's attorney, Robert M. Friedman, was murdered. On July 1, 2003, Wife’s present attorney filed a notice of appearance in this case.

      . While there were a number of hearings before the trial court the other issues, such as child custody and attorney’s fees, the trial court told the parties expressly that proof regarding fault would be heard another day.

      . It must be noted that the proposed decree of divorce proffered by Husband's counsel goes beyond merely declaring the parties divorced. While a division of the marital property was premature at that point, the proposed decree, adopted by the trial court, provides that "any property acquired by either party through their own work and endeavor subsequent to entry of this decree ... shall constitute that party's separate property.” Husband has a substantial real estate development and hom-ebuilding business, valued by Wife at over twenty million dollars. In urging the trial court to award the divorce to Wife as moved by Husband, Husband’s attorney noted that the trial court would have to equitably divide the marital assets. He asserted that this could “not even begin until you have a divorce, until you have a cut-off date,” and that, otherwise, Husband’s real estate development business would be a "moving target.” This provision was also objected to by Wife. It is unclear how this factored into the parties' positions and the trial court's decision.

      . The Court defers to the trial court’s discretion in ordering the proof at trial, recognizing the need to minimize time and resources devoted unnecessarily to issues not in dispute.


author: W. FRANK CRAWFORD, P.J., W.S.,

text:
    Charles Larry HONEYCUTT v. Ann Marie Migliaccio HONEYCUTT.
    Court of Appeals of Tennessee, at Jackson.
    Sept. 16, 2003 Session.
    Dec. 12, 2003.
    Permission to Appeal Denied by Supreme Court June 1, 2004.

      Jerry A. Schatz, Memphis, for Appellant, Charles Larry Honeycutt.
    Stevan L. Black and Vickie Hardy Jones, Memphis, for Ann Marie Migliaccio Honeycutt.
   OPINION

W. FRANK CRAWFORD, P.J., W.S.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, J. and DAVID R. FARMER, J., joined.

This appeal involves the interpretation of an MDA incorporated into a Final Decree of Divorce concerning a provision for termination of alimony upon wife’s cohabitation with an unrelated male. The trial court denied Husband’s petition for termination and Husband appeals. We reverse and remand.

Plaintiff, Charles Larry Honeycutt (“Husband” or “Plaintiff’), and defendant, Ann Marie Migliaccio Honeycutt (“Wife” or “Defendant”), were divorced on February 9, 1998 after nearly 32 years of marriage. Husband filed a Complaint for Absolute Divorce on March 18, 1996, on the grounds of irreconcilable differences. Husband’s complaint requested the court to dissolve the parties’ marriage and “approve the Marital Dissolution Agreement which Plaintiff anticipates the parties will enter into.” Wife filed an Answer and Counter-Complaint for an Absolute Divorce on April 25,1996, admitting the existence of irreconcilable differences and alleging, as further grounds for divorce, Husband’s inappropriate marital conduct. Wife’s Counter-Complaint sought, in part, an equitable division of the marital assets, alimony pendente lite and permanent alimony, and reasonable attorney’s fees.

By Order entered January 2, 1997, the trial court directed Husband to pay Wife “$1,000.00 per week as alimony pendente lite, beginning June 1, 1996, until further Court Order.” The court additionally ordered Husband to pay Wife $1,200.00 for attorney’s fees incurred during the hearing on her motion for alimony pendente lite.

A Marital Dissolution Agreement (“MDA”) was filed on January 9, 1999. The parties’ agreement specified, inter alia, that Husband would pay to Wife $1,000.00 per week in alimony in futuro, “until such time as Wife dies, remarries, cohabitates with a man not related to her, reaches the age of 65, or becomes qualified to receive Social Security benefits, whichever occurs first.” The parties further clarified that “Husband’s obligation to pay alimony shall cease upon the occurrence of any of those events.”

The MDA provided that Husband would pay, as additional alimony in futuro, “the premium on Wife’s major medical health insurance until such time as Wife remarries, cohabitates with a man not related to her, reaches the age of 65, becomes eligible for Medicare benefits, or until either party dies, whichever occurs first.” With regard to attorney’s fees incurred, the agreement specified that “Husband shall pay, as alimony, directly to Wife’s attorney, Barbara McCullough, $2,500.00 for the purposes of defraying Wife’s attorney fees.”

The Court entered a Final Decree of Absolute Divorce on February 9,1998, terminating the parties’ union on the grounds of irreconcilable differences and, incorporating by reference, the MDA. On May 23, 2001, Husband filed a Motion to Divorce Referee for termination of his alimony obligations. This same day, Husband filed a “Petition to Modify Final Decree of Divorce To Terminate Alimony.” As grounds for his petition, Husband alleged that Wife was cohabitating with an unrelated male, “with whom she is romantically involved,” both at his residence in Tampa, Florida, and her Cordova, Tennessee home. Wife filed an Answer to Husband’s petition on January 24, 2002, addressing Husband’s allegation of cohabitation:

Denied. Respondent has been involved in a dating relationship with a male person who resides in Tampa, Florida. She has spent the night at his home in Tampa, Florida on a number of occasions. Likewise, on a few occasions this male person has spent the night at her home in Cordova, Tennessee located at 8686 Cedar Farms. At all times Respondent has maintained a separate residence and is not receiving support from this male person nor is she providing any support to this male person. Each of the parties is self-supporting.

On August 14, 2002, Wife filed a “Petition for Scire Facias and Citation for Civil and Criminal Contempt, to Reduce Arrear-age to Judgment, and for Attorneys’ Fees.” Wife’s petition alleged that Husband regularly failed to pay alimony as required by the parties’ MDA since entry of the Final Decree of Divorce and, specifically, had faded to pay alimony and Wife’s health insurance premium since July 12, 2002.

In response to a motion filed by Wife requesting a continuance of the hearing scheduled for Husband’s petition, a special chancellor entered an Order on August 28, 2002 resetting the hearing and further directing:

It further appearing to the Court that the alimony payments of $1,000.00 per week that Petitioner was previously ordered to pay pursuant to the terms of the Marital Dissolution Agreement entered in this cause shall be suspended as of August 14, 2002 until the hearing herein. Such suspended payments will be due and payable to Defendant in the event that alimony previously awarded to her is not terminated at the hearing.

Wife next filed a “Motion to Reinstate Alimony Payments Pending Hearing on Mr. Honeycutt’s “Petition to Modify Final Decree of Divorce to Terminate Alimony” ” on October 4, 2002, asserting that the protracted litigation was causing her to deplete her already limited financial assets. The trial court granted Wife’s motion for reinstatement of alimony by Order entered October 18, 2002, concluding that the alimony payments required of Husband pursuant to the parties’ MDA should be reinstated, and further directing Husband to “pay to Ms. Honeycutt promptly all payments which have accrued since the date of the suspension of Mr. Honeycutt’s obligation.”

On November 1, 2002, Wife filed a second “Petition for Scire Facias and Citation for Civil and Criminal Contempt, to Reduce Arrearage to Judgment, and for Attorneys’ Fees,” citing Husband’s continued and repeated failure to comply with the alimony requirements set forth in the MDA. Shortly thereafter, Husband filed a Motion to Dismiss Wife’s petition of August 14, 2002. As grounds for his motion, Husband stated:

Respondent states and alleges that no alimony payments have been due to Petitioner under the terms of the Marital Dissolution Agreement since at least October, 1999, as Petitioner has been coha-bitating with a man not related to her since October, 1999, or before. Likewise, Respondent has not been obligated to pay the premium on Petitioner’s health insurance since at least October 1999, for the same reason.
Respondent further states and alleges that at the time the Petition for Scire Facias was filed, August 14, 2002, Respondent was current on all alimony payments he would have been obligated to make had his obligation not already ceased as a result of Petitioner’s cohabitation with an unrelated male.

Husband’s Motion to Dismiss Wife’s November 1, 2002 petition, cited identical grounds in support.

A non-jury trial in this case was held on November 13 and 14, 2002. During her testimony at trial, Wife admitted to beginning a long-distance romantic relationship with Mr. Vern Barclay (“Barclay”) in August 1999. At the time, Wife lived in Cordova, Tennessee, and Barclay resided in Tampa, Florida. The parties entered a stipulated calendar as collective exhibits 1, 2, and 3 at trial, the calendars indicating that Wife spent approximately 266 days, from October 1999 through September 2000, at Barclay’s residence in Tampa. Wife testified that she stayed at Barclay’s home while in Tampa, and admitted that she engaged in sexual relations with Barclay and slept in his bed. Wife further acknowledged that when she was in Tampa, she always stayed at Barclay’s home.

Throughout her testimony, Wife characterized her trips and extended stays in Tampa as “visits,” and repeatedly denied eohabitating with Barclay. The evidence is undisputed, however, that Wife had a key to Barclay’s home, was free to stay there even when Barclay was not around, and kept several articles of clothing at the Tampa residence. Wife testified that she never paid any monies to Barclay for rent or utilities with regard to his Tampa home. The evidence is further undisputed that all of Wife and Barclay’s Florida friends knew that the two were a couple.

Despite her frequent and prolonged “visits” to Florida, Wife testified that she maintained a home in Cordova, Tennessee. Wife .testified that she continues to pay taxes, insurance, and maintenance expenses on her Cordova home. Wife additionally noted that she has maintained utility service in her home, including telephone and internet service. Wife’s income tax returns for the years 1999, 2000, and 2001 list her address as Cordova, Tennessee.

Wife also testified that she maintains her primary personal checking account with Union Planters Bank in Memphis, Tennessee. In further regard to her financial interests and assets, Wife testified that she opened a Morgan Stanley account in Florida, transferred a Payne-Webber security account from Memphis to Florida, and opened a personal account with Nations Bank in Florida. All of these accounts listed Wife’s address as Barclay’s Tampa residence.

In an Order entered November 22, 2002, the court denied Husband’s “Petition to Modify Final Decree of Divorce to Terminate Alimony.” The court’s order further denied the parties’ individual requests for attorney’s fees. Husband filed a Notice of Appeal on December 3,2002.

Husband presents as his sole issue for review the question of whether the trial court erred in denying his “Petition to Modify Final Decree of Divorce to Terminate Alimony,” where Wife has continued to cohabitate with an unrelated male, thereby triggering the alimony termination conditions set forth in the parties’ MDA. Wife presents for review the following additional issues, as stated in her brief:

Whether the trial court erred in denying [Wife’s] request for attorney fees incurred in defending her right to receive alimony from [Husband].
Whether [Wife] should be awarded her attorney fees incurred in defending this appeal.

Since this case was tried by the court sitting without a jury, we review the case 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. See Tenn. R.App. P. 13(d).

I.

Husband’s sole issue for review asks this Court to consider whether the trial court erred in denying his “Petition to Modify Final Decree of Divorce to Terminate Alimony,” in light of Wife’s cohabitation with Barclay.

The parties’ MDA states, in pertinent part:

7. Alimony. As support and maintenance, Husband agrees to pay alimony in futuro to Wife in the amount of $1,000.00 per week until such time as Wife dies, remarries, cohabitates with a man not related to her, reaches the age of 65, or becomes qualifted to receive Social Security beneñts, whichever occurs first. The parties agree that under no circumstances shall Wife seek alimony in excess of that provided for in this Agreement, either in amount or duration. Husband’s obligation to pay alimony shall cease upon the occurrence of any of those events. The parties acknowledge that this alimony is taxable to Wife and deductible by Husband.
9. As further alimony in futuro, Husband agrees to pay the premium on Wife’s major medical health insurance until such time as Wife remarries, co-habitates with a man not related to her, reaches the age of 65, becomes eligible for Medicare beneñts, or until either party dies, whichever occurs first.

(emphasis added).

“An MDA is a contract and as such generally is subject to the rules governing construction of contracts.” Johnson v. Johnson, 37 S.W.3d 892, 896 (Tenn.2001) (citations omitted). “Since the interpretation of a contract is a matter of law, our review is de novo on the record with no presumption of correctness in the trial court’s conclusions of law.” Witham v. Witham, No. W2000-00732-COA-R3-CV, 2001 WL 846067, at *3 (Tenn.Ct.App. July 24, 2001) (citing Union Planters Nat’l Bank v. American Home Assurance Co., 865 S.W.2d 907, 912 (Tenn.Ct.App.1993)).

In Pitt v. Tyree Organization Ltd., 90 S.W.3d 244 (Tenn.Ct.App.2002), we discuss the rules concerning construction of a contract:

The cardinal rule in the construction of contracts is to ascertain the intent of the parties. Bradson Mercantile, Inc. v. Crabtree, 1 S.W.3d 648, 652 (Tenn.Ct.App.1999) (citing West v. Laminite Plastics Mfg. Co., 674 S.W.2d 310 (Tenn.Ct.App.1984)). If the contract is plain and unambiguous, the meaning thereof is a question of law, and it is the Court’s function to - interpret the contract as written according to its plain terms. Id. (citing Petty v. Sloan, 197 Tenn. 630, 277 S.W.2d 355 (1955)). The language used in a contract must be taken and understood in its plain, ordinary, and popular sense. Id. (citing Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578 (Tenn.1975)). In construing contracts, the words expressing the parties’ intentions should be given the usual, natural, and ordinary meaning. Id. (citing Ballard v. North American Life & Cas. Co., 667 S.W.2d 79 (Tenn.Ct.App.1983)). If the language of a written instrument is unambiguous, the Court must interpret it as written rather than according to the unexpressed intention of one of the parties. Id. (citing Sutton v. First Nat. Bank of Crossville, 620 S.W.2d 526 (Tenn.Ct.App.1981)). Courts cannot make contracts for parties but can only enforce the contract which the parties themselves have made. Id. (citing McKee v. Continental Ins. Co., 191 Tenn. 413, 234 S.W.2d 830 (1950)).

Id. at 252.

In Heyer-Jordan & Associates v. Jordan, 801 S.W.2d 814, 821 (Tenn.Ct.App. 1990), this Court stated that “in the absence of fraud or mistake, a contract must be interpreted and enforced as written, even though it contains terms which may be thought harsh and unjust.” See Petty v. Sloan, 197 Tenn. 630, 277 S.W.2d 355, 359 (1955).

In interpreting the parties’ MDA, the trial court found the term “cohabitates with a man not related to her,” ambiguous, and further determined that, in light of the language utilized in MDA paragraph 7 regarding alimony, this term should be read in conjunction with the other conditions listed for termination of alimony in futuro. Moreover, the trial court interpreted the parties’ intent with regard to the alimony in futuro paragraph as requiring proof of support from a third party before termination of Husband’s alimony obligations was triggered or permitted. We quote at length from the court’s ruling from the bench on November 14, 2002:

I think in looking at it, I have to make a determination in light of what the purpose of the agreement was, not just the agreement itself, because I think the language does have an ambiguity to it. There is certainly no definition for what this means.
I think that one side may have one opinion about what the term “cohabi-tate” means, and the other side might have a different opinion. We could probably spend the rest of the day here arguing'what it is.
I don’t think we can just pull that one section out of there which says, “... cohabitates with a man not related to her ...” and not look at what these other statements say to determine what that term, “... cohabitates with a man not related to her ...” means.
I think when we look at these other statements, my interpretation of that is, and the purpose for which this alimony paragraph was put into the agreement was as support and maintenance until such time as an event occurs for which she would no longer require support and maintenance.
In this case, those events would be: When the wife dies she would no longer require support and maintenance.
When she remarries she would no longer require support and maintenance.
When she reaches the age of 65 or becomes qualified to receive Social Security benefits she would no longer require support and maintenance, or when she becomes qualified to receive Social Security benefits, whichever occurs first.
Now, what does the term, “cohabi-tates with a man not related to her ...” mean in the context of those events?
I think in light of what the purpose of Paragraph 7 of the agreement was, which was as support and maintenance for the lady. And in seeing her tax returns, that is essentially her whole support and income, which I think was the intention of the parties when this agreement was entered into.
I just don’t think that I can pull out this part of the agreement that says, “... cohabitates with a man not related to her ...” simply because she is having a relationship with someone — be it a sexual relationship or otherwise — unless I have proof that that person is providing her support.
I think in the context of these statements within Paragraph 7, that was the intent of this paragraph. The intent of this paragraph was for an event to occur that would no longer require Mrs. Ho-neycutt to require the alimony as support and maintenance that was agreed to in this agreement. That is the way I interpret, “... cohabitates with a man not related to her ...”
I interpret that to mean not merely that she is visiting a man, staying with a man who she is having a sexual relationship with, but it has to go beyond that. It has to be that this person, in fact, is providing her support so that this alimony that she is provided under this agreement is no longer necessary.
So based on my interpretation of the agreement to mean that, and based on the fact that I have not heard any facts to support that Mrs. Honeycutt is, in fact, receiving financial assistance from Mr. Barclay, I deny the petition.

“Cohabit” is defined as:

1: to live together as or as if as husband and wife ("ed without formal marriage)[;] 2a: to live together or in company!;] b: to be intimately together or in company!.]

Webster’s Third New International Dictionary 440 (1993). Another definition for “cohabitation” reads:

To live together as husband and wife. The mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations.

Black’s Law Dictionary 236 (5th ed. 1979).

On the basis of the above-cited definitions for “cohabit” and “cohabitation,” we conclude that these terms, as applied and utilized in common usage, do not require or necessarily include the receipt of financial assistance from or by a cohabitor. Moreover, from our reading of the plain language of the MDA, paragraph 7, we find no suggestion or requirement that Wife must receive financial assistance or support from an “unrelated male” with whom she is cohabitating, to allow for or trigger termination of Husband’s alimony obligations. We respectfully disagree with the trial court that the purpose of the cohabitation language is for Wife’s support. To the contrary, Husband explicitly provided for termination of his support in the event of alternative areas of support. However, Husband did not attach “support” as a condition of cohabitating without benefit of marriage. It appears to the Court that Husband was not adverse to providing support for Wife, except when the enjoyment of the use of his money is shared with a paramour.

We further note that the parties freely chose to include in the MDA, as a condition for termination of alimony in futuro, Wife’s “cohabitation] with a man not related to her.” (emphasis added). If it was truly the intention of the parties to premise termination of Husband’s alimony payments upon Wife’s receipt of financial assistance from a cohabitor, we find no reason for the parties’ to elect to explicitly terminate alimony upon cohabitation with an unrelated male, and not upon cohabitation with any third party, such as family members or girlfriends. That said, we find that the parties explicitly contracted for the termination of Husband’s alimony obligations in the event Wife cohabits with an unrelated male, regardless of whether said male was providing Wife with financial assistance or support. We therefore find that the' trial court erred in denying Husband’s petition on the basis that he failed to introduce proof that Wife was receiving financial assistance from Barclay.

Having concluded that the language of the MDA requires or allows for termination of Husband’s alimony obligations upon Wife’s cohabitation with an unrelated male, we must now determine whether Wife in fact cohabited with Barclay as said term is defined in common, plain language. The evidence in this case is undisputed that Wife began an exclusive romantic relationship with Barclay in August 1999. The parties entered, as a collective exhibit, calendars for the years 1999, 2000, and 2001, to which Wife stipulated. According to the 1999 calendar, Wife spent 41 consecutive days in Barclay’s home from October 3, 1999 through November 13, 1999. The 2000 calendar reveals that Wife stayed with Barclay in his Tampa home for 206 days during a period spanning January 2000 through September 2000. Collective Exhibit 3, the 2001 calendar, indicates that Wife stayed in Barclay’s Tampa home for 175 days from January 1, 2001 through September 8, 2001. Additionally, Wife acknowledged that she and Barclay took several trips together, including vacations to New England, Europe, Disney World, Atlanta, Lake Tahoe, and North Carolina. Wife testified that she and Barclay took these trips as a couple, sharing hotel rooms or bedrooms.

Wife admits to engaging in sexual relations with Barclay during her “visits” to Tampa, and further acknowledges that while in Tampa, she always stayed with Barclay, and shared his bed. Wife testified that she kept clothing in the closets at Barclay’s Tampa home, stating:

Q. Okay. And now, again so we can be crystal clear on this, you kept clothing down at 4309[, Barclay’s Tampa residence,] that just stayed there; am I correct?
A It depended on if I needed it in Memphis. I’m sure I left clothing behind, in all honesty.
Q. (BY MR. SCHATZ) Is it in fact true that you kept a large amount of clothes, including underwear, down at [Barclay’s Tampa home]?
A. I have clothes and underwear. I have clothes in Tampa.
Q. In fact, isn’t it so many that you have at least a large part of the closet in the bedroom that you share with Mr. Barclay?
A. A large part of it?
Q. Yes, of the closet.
A. No.
Q. Okay. And is it true that you also have clothes on a hanging rack or have had clothes on a hanging rack because it [sic] wasn’t room in the bedroom for all of your clothes? Isn’t that true?
A. I had a rack, yes.
Q. That was in addition to the clothes that you kept in the bedroom closet, is that true?
A. I have quite a few clothes there.
Q. Okay.
A. I mean, I wouldn’t say that I have more than two suitcases full of clothes.

In addition to clothing, Wife also admitted to keeping toiletries at Barclay’s home, although she insisted that she normally “took all my toiletries back and forth [from Memphis to Tampa].” Wife further conceded that she kept her automobile in Tampa from January 1, 2001 through September or October 2001. The evidence is moreover undisputed that Wife had a key to Barclay’s home, and would have had free run of the home even on occasions when Barclay was away.

There is no evidence in the record to indicate that Wife paid rent or utilities during her stay in Barclay’s home, nor is there any evidence that Barclay provided her with financial support. Wife acknowledged that she and Barclay both contributed to the purchase of groceries and toiletries.

When questioned as to whether she and Barclay held themselves out as a couple to friends and acquaintances in Florida, Wife testified:

Q. Were there any other — or can you remember any instances where you held yourself out or represented to third parties that you and Mr. Barclay were a couple?
A. All of our friends knew we were a couple.
Is that what you’re asking me, sir?

The evidence additionally indicates that Wife had her mail forwarded to Barclay’s Tampa residence for an extended period of time in 2000. Further, during examination by Husband’s counsel at trial, Wife acknowledged that she had given an answer during an earlier deposition admitting that she had, on at least one occasion, represented her address as Barclay’s Tampa home.

In light of these facts, we find that the evidence in the record establishes that Wife cohabited with Barclay at his Tampa home. Cf Harris v. Corley, No. 01-A-019102CH00055, 1991 WL 119061, at *1-2 (Tenn.Ct.App. July 5, 1991) (holding that facts justified application of T.C.A. § 36-5 — 101(a)(3) where proof was entered that alleged cohabitant spent several nights at plaintiffs home, kept toiletries and clothing at plaintiffs residence, had a key to the residence, used plaintiffs telephone number in advertisements for boats, trucks, and trailers that he was attempting to sell, and where plaintiff and cohabitant gave each other “money as needed”); Az-bill v. Azbill, 661 S.W.2d 682, 686-87 (Tenn.Ct.App.1983) (concluding that it could not find that the evidence preponderated against the trial court’s finding that plaintiff and alleged cohabitant were living together within the meaning of T.C.A. § 36-820(a)(3) where record indicates that cohabitant was at plaintiff’s home daily, “had a key, came in and out as he pleased, had clothes and toilet articles in the house, and at least on four different occasions spent the entire night in the home,” and where trial court was in better position to determine the credibility of the witnesses); but cf. McCullough v. McCullough, No. 01A01-9701-CV-00039, 1997 WL 749459, at *4 (Tenn.Ct.App. Dec. 5, 1997) (finding of court that evidence does not preponderate in favor of a finding of cohabitation where third party’s overnight visits were sporadic, and where there was “no evidence that [the third party] kept clothing or toiletries at Wife’s home, that he had a key to the home, or that he routinely ate his meals at Wife’s home”).

Having determined that Wife cohabited with Barclay, an unrelated male, we find that, under the plain language of the parties’ MDA, Husband’s alimony obligations are terminated. However, there must be a determination of when cohabitation occurs. As it is defined, cohabitation requires a “living with” arrangement, thus contemplating a continued course of conduct. Our Supreme Court in Jones v. State, 182 Tenn. 60, 184 S.W.2d 167 (1944), considering the word “cohabit” stated:

Independent of the use of the word continue, the word cohabit, standing alone, connotes a fixed, rather than a transient, condition. The term “cohabit,” says 14 C.J.S., Cohabit, p. 1311, “imports a dwelling together for some period of time, and does not include mere visits or journeys”....

Id. at 169 (citations omitted).

In the instant case, the record establishes that at the very least Wife lived with Barclay in his Tampa home for 206 days from January 2000 through September 2000. There can certainly be no doubt that cohabitation occurred during this period of time. However, because of the continuing nature of the term “living with,” some period must be established for the actual termination of the alimony obligation. Husband filed his petition to modify the final decree of divorce on May 23, 2001, alleging cohabitation in violation of the MDA. For lack of a better termination period, we believe that the date of filing the petition would be the proper date for the termination of Husband’s obligation under the MDA.

Accordingly, on remand, the trial court is to determine alimony paid by Husband from and after May 23, 2001, and enter judgment against Wife for that amount as a refund to Husband.

In sum, the order of the trial court is reversed, and it is ordered that the obligation of Husband for alimony is terminated effective May 23, 2001. The case is remanded to the trial court for determination of the amount of alimony paid by Husband subsequent to May 23, 2001 for entry of judgment of that amount against Wife. Costs of the appeal are assessed to Appellee, Ann Marie Migliaccio Honeycutt. The remaining issues are pretermitted.

      .Wife further explained her frequent and extended visits to Florida were necessitated by her involvement in a placement service business that she owned with Barclay. Wife testified that she was the Director of a corporation known as Legal Staff & More, and noted that she made her initial investment into this corporation in July 1999. The corporation, which began in Clearwater, Florida, was run out of Barclay's home in Tampa. Legal Staff & More ceased operation in October or November 2001, and Wife and Barclay closed the books on this business in Januaiy 2002.

      . Wife testified that she put her Cordova home up for sale in February 2000, for a period of six months. Wife explained the reason for putting her home up for sale as she had plans to build a home in Tampa.

      . This Court denied a motion of Husband to expedite the decision in the present matter by Order entered June 5, 2003.

      . "Cohabitation” is more succinctly defined in the pocket edition of Black’s Law Dictionary as, "[t]he fact or state of living together, [especially] as partners in life, [usually] with the suggestion of sexual relations.” Black’s Law Dictionary 107 (pocketed. 1996).

      . Wife asserts that T.C.A. § 36 — 5—101 (a)(3)(A) and (B) (Supp.2003) are applicable in this matter, as it involves a former spouse receiving alimony in futuro. Accordingly, Wife contends that the rebuttable presumptions listed in subsections (3)(A) and (3)(B) regarding the contribution of financial support to, or receipt of said support from, a third person with whom the alimony recipient is living, must be considered. As such, Wife asserts that there is no evidence in the record to indicate that Wife is contributing support to, or receiving support from, Barclay. Further, Wife maintains that the money that she receives from Husband in the form of alimony in futuro is her primary means of financial support, and that she still has a need for such support.
      In this particular case, we find T.C.A. § 36-5-101 (a)(3)(A) and (B) inapplicable. This is a case of contract interpretation. Our review is governed by the plain language of the parties' MDA. The MDA does not reference, cite, or incorporate this statute with regard to suspension or termination of Husband’s alimony obligations. Rather, the MDA explicitly provides for the termination of these obligations upon Wife's death, remarriage, cohabitation with an unrelated male, her becoming qualified for receipt of Social Security benefits, or her reaching age 65, "whichever occurs first.”

      . Wife contends that her frequent and extended visitations in Tampa were primarily a result of her interest and involvement in Legal Staff & More. Wife further suggests that her visits to Florida became less frequent after the business closed in late 2001, early 2002. We note that neither of the parties entered a calendar for the months of October through December 2001, or for the year 2002.

        Despite Wife's assertion, we find no evidence in the record to indicate that Wife's visits to Florida became more or less frequent after the closing of the aforementioned corporation. Point of fact, Wife testified that she continues to visit and stay with Barclay at his new Florida home “on a regular basis,” stating:
      Q. (BY MR. SCHATZ) You would agree, based on that information, that you are still continuing to stay in his residence, in his bedroom, sleeping with him, for long periods of time. Would that be a correct statement?
      A. Yes.