author: PAUL M. SPINDEN, Judge.

text:
    STATE of Missouri, Appellant, v. Victor SANDERS, Respondent.
    No. WD 57811.
    Missouri Court of Appeals, Western District.
    April 25, 2000.
    Terrence M. Messonnier, Asst. Pros. Atty., Lexington, for appellant.
    Horton Jay Lance, Kansas City, for respondent.
    Before: JOSEPH M. ELLIS, Presiding Justice, PAUL M. SPINDEN, Judge, and THOMAS H. NEWTON, Judge
   PAUL M. SPINDEN, Judge.

The state charged Victor Sanders with possessing a controlled substance. Sanders responded to the state’s charges by filing a motion to suppress the evidence that officers obtained while searching him and his vehicle. The circuit court sustained Sanders’ motion to suppress, and the state filed this interlocutory appeal. Because the circuit court refused to resolve the factual issues before it and erroneously applied the wrong burden of proof, we reverse and remand to the circuit court for further proceedings.

At the suppression hearing, the state presented evidence that Jeremy Fahrmeier, deputy to the Lafayette County sheriff, stopped a vehicle driven by Sanders to investigate a speed limit infraction and the vehicle’s having only one headlight lit. After obtaining identification from Sanders, Fahrmeier returned to his patrol car and asked his dispatcher to check Sanders’ record. Fahrmeier said that he learned through the record check that Sanders had “prior relations with law enforcement” and a “history of possibly being violent.” While Fahrmeier wrote the summons, Sergeant David Hanaway of the Lafayette County Sheriffs Department arrived to assist Fahrmeier. According to Fahrmeier, Hanaway told him that Sanders had previously been caught with drugs.

Fahrmeier said that when he returned to Sanders’ vehicle, he asked Sanders to get out of his vehicle. Fahrmeier said that they walked to the front of Sanders’ vehicle and that there he gave Sanders a summons for speeding and returned Sanders’ driving license. Fahrmeier said that he then asked Sanders whether he had any illegal items in his vehicle and whether Sanders would consent to his searching the vehicle. Fahrmeier and Hanaway said that Sanders consented to a search. The officers found drug paraphernalia that appeared to have been recently used.

Fahrmeier arrested Sanders and handcuffed him. Fahrmeier said that Sanders asked him to put his driving license in his wallet. Sanders had put the license on the vehicle’s hood. Fahrmeier said that as he placed Sanders’ license in Sanders’ wallet he discovered a bag containing a powdery substance which appeared to him to be methamphetamine.

Sanders’ version differed. He said that when Fahrmeier returned to his vehicle, Fahrmeier asked him to get out of his vehicle and immediately handcuffed him. Sanders said that Fahrmeier asked him for permission to search the vehicle but that he said no. Sanders also said that he never asked Fahrmeier to put his driving license in his wallet and that Fahrmeier seized his wallet while patting him down. Sanders admitted that he possessed methamphetamine in his wallet.

The state’s evidence showed that Fahrmeier’s initial report of the incident did not explain the basis for his searching Sanders’ vehicle. Fahrmeier did include in his report his first question to Sanders — whether he had any illegal items— but did not include the second question— whether he consented to a search of his vehicle. When the prosecutor’s office asked Fahrmeier about this omission, Fahrmeier prepared a supplemental report stating that Sanders consented to the search. Fahrmeier said that the omission was a “simple mistake.” He said that it was one of his first vehicle stops during the first week of his patrolling alone.

After hearing the evidence, the circuit court made a lengthy oral ruling granting Sanders’ motion to suppress. The circuit court noted the conflicts in Fahrmeier’s and Sanders’ versions of what happened but decided not to resolve the credibility issue. Instead, it based its decision on a need to protect the public’s “confidence in the workings of our law enforcement and law enforcement community.” In declaring its decision to suppress the evidence, the circuit court said, “[I]f I’m to find the matters beyond a reasonable doubt and do my job as a gate keeper in this system, I can’t let this one go by.”

Generally, when reviewing a circuit court’s order sustaining a motion to suppress, we consider all facts and reasonable inferences in the light most favorable to the challenged order, and we defer to the circuit court’s determination as to the credibility of witnesses. State v. Young, 991 S.W.2d 173,176 (Mo.App.1999). When the circuit court, however, makes gratuitous oral statements on the record, we may consider those statements in determining whether the circuit court erroneously applied or declared the law. Colombo v. Buford, 935 S.W.2d 690, 693 (Mo.App. 1996); In the Interest of L.W.F., 818 S.W.2d 727, 733 (Mo.App.1991). We will reverse the circuit court’s ruling on a motion to suppress only if its decision is clearly erroneous. State v. Milliorn, 794 S.W.2d 181,183 (Mo. banc 1990).

The circuit court’s ruling was clearly erroneous. It declined to make credibility determinations that were necessary in this case to making a proper determination, and it did not apply the appropriate standard of proof, imposing on the state a burden of showing consent beyond a reasonable doubt rather than by a preponderance of the evidence. State v. Brown, 814 S.W.2d 304, 307 (Mo.App.1991); § 542.296.6, RSMo 1994.

The circuit court announced to the parties that it would not “offer an opinion as to whether or not [it] believe[d] one person more than the other person in this case” but went on to grant the motion to suppress. Without making a determination of whose version to believe — Fahrmeier’s or Sanders’ — the circuit court did not have a proper basis for making its ruling. It appears to have granted the motion to suppress to “encourage [police] work to be done right or appropriately or properly.” This was not a proper ground for the ruling.

The circuit court told the state that it “very likely” would have resolved doubts of credibility in its favor because it did not want “a courtroom of defendants coming in here and telling [it that they] didn’t consent,” but that it had a problem with the way Fahrmeier prepared his report. The court then concluded that “there were just too many problems with the thing from the start to the finish” to sustain the public’s confidence in the judiciary and law enforcement. The circuit court’s duty, however, was to resolve any issues of credibility before ruling on the motion to suppress and to base its ruling on the facts as it perceived them to be true. The circuit court did not fulfill its obligation.

Sanders contends that the circuit court found that the traffic stop had ended, so Fahrmeier had no basis to continue the stop or to ask for consent to search the vehicle. See State v. Woolfolk, 3 S.W.3d 823 (Mo.App.1999); State v. Morr, 811 S.W.2d 794 (Mo.App.1991). Because the circuit court did not resolve the credibility issues, we have no basis to judge the validity of Sanders’ argument.

Moreover, the court erred in concluding that it had to find the matters beyond a reasonable doubt. A search conducted without a warrant but with proper consent is valid under the Fourth Amendment of the United States Constitution. Brown, 814 S.W.2d at 307. The state bore the burden of showing by a preponderance of the evidence that the consent was voluntarily given. Id.; United States v. Matlock, 415 U.S. 164, 177, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). The issue before the circuit court, therefore, was whether the state proved by a preponderance of the evidence — not beyond a reasonable doubt — that Sanders voluntarily consented to the search. The circuit court applied the wrong standard of proof.

Because the circuit court did not resolve the factual issues and applied the wrong standard of proof, we reverse and remand to the circuit court for further proceedings.

JOSEPH M. ELLIS, Presiding Judge, and THOMAS H. NEWTON, Judge, concur.

      . Sanders contends that the circuit court was simultaneously deciding the suppression issue and considering the effect of his ruling on the ultimate guilt issue, and was, therefore, acknowledging that without the physical evidence the state would fail to prove its case beyond a reasonable doubt. We disagree. The circuit court specifically told the parties that it was only considering the motion to suppress. The court said, “I have to rule, as I understand it, the motion to suppress first, and give the [s]tate the option of doing what they want to do, to include a dismissal or requesting the [c]ourt rule the case, or requesting an appeal, whatever you want to do.”


source: Caselaw Access Project

author: BRECKENRIDGE, Chief Judge.

license: Public Domain

text:
    Gary P. WELLNER, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. WD 56295.
    Missouri Court of Appeals, Western District.
    April 25, 2000.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for appellant.
    Michael C. McIntosh, Independence, for respondent.
    Before BRECKENRIDGE, C.J., SPINDEN and SMART, JJ.
   BRECKENRIDGE, Chief Judge.

The Director of Revenue appeals the trial court’s judgment awarding Gary P. Wellner attorney fees and costs pursuant to § 302.536, RSMo Cum.Supp.1996. The attorney fees and costs were requested and granted after this court reversed the trial court’s judgment upholding the Director’s suspension of Mr. Wellner’s driving privilege. Because the trial judge erroneously applied § 302.536 retrospectively, the trial court’s judgment is reversed.

Factual and Procedural Background

On October 27, 1995, the Director notified Mr. Wellner that his driving privilege was suspended under § 302.505, RSMo 1994, for driving with a blood alcohol content of at least .10 percent by weight. Thereafter, Mr. Wellner filed a petition for a trial de novo in the Circuit Court of Jackson County, Missouri, to contest the Director’s determination. After hearing the matter, the trial court issued its findings of fact, conclusions of law, and judgment upholding the Director’s suspension of Mr. Wehner’s driving privilege on June 3, 1996. Mr. Wellner appealed to this court, which reversed the trial court’s judgment and remanded the case with instructions that the trial court order reinstatement of Mr. Wellner’s driving privilege. Wellner v. Director of Revenue, 949 S.W.2d 683, 684-85 (Mo.App.1997).

While Mr. Wellner’s appeal was pending, § 302.536 became effective. Section 302.536 provides as follows:

If the judge upholds the department’s ruling to suspend or revoke a person’s license after a hearing conducted pursuant to subsection 1 of section 302.535, and the person appeals such ruling, the department shall pay any court costs and attorney fees the person incurs pursuant to such appeal if the court reverses the department’s ruling to suspend or revoke such person’s license.

After this court’s reversal, Mr. Wellner filed a motion in the circuit court requesting attorney fees and costs under § 302.536. On July 20, 1998, the trial court entered a judgment awarding $2,868.51 to Mr. Wellner for attorney fees and costs. The Director filed this appeal.

Standard of Review

This court will affirm the trial court’s judgment unless it was not supported by substantial evidence, was against the weight of the evidence, or the trial court erroneously declared or applied the law. Devine v. Director of Revenue, 961 S.W.2d 87, 88 (Mo.App.1997). If the trial court erroneously declared or applied the law, the trial court’s judgment will be given no deference. Knipp v. Director of Revenue, 984 S.W.2d 147, 151 (Mo.App.1998).

Erroneous Retrospective Application of § 302.536

The Director contends that § 302.536 did not apply to Mr. Wellner’s case because Mr. Wellner appealed before the statute’s effective date; hence, the trial court’s enforcing the statute constituted an erroneous retrospective application of the statute. Article 1, Section 13 of the Missouri Constitution states “[t]hat no ex post facto law, nor law ... retrospective in its operation, ... can be enacted.” A retrospective law is one that “takes away or impairs vested or substantial rights acquired under existing laws, or imposes new obligations, duties, or disabilities with respect to past transactions.” Mendelsohn v. State Regis, for Healing Arts, 3 S.W.3d 783, 785 (Mo. banc 1999). The constitutional prohibition against retrospective laws does not apply to statutes that are procedural in nature because a litigant has no vested rights in matters of procedure; it only precludes retrospective laws that affect substantive rights. Id. at 786. “Because the retrospective law prohibition was intended to protect citizens and not the state, the legislature may constitutionally pass retrospective laws that waive the rights of the state.” Savannah R-III v. Pub. School Ret. Sys., 950 S.W.2d 854, 858 (Mo. banc 1997). However, under Missouri law, there is the presumption that a statute is to operate prospectively, “unless the legislature specifically provides that the statute have [retrospective] effect.” State Bd. of Registration v. Warren, 820 S.W.2d 564, 565 (Mo.App.1991). Thus, we will normally apply a law retrospectively only where it is procedural in nature or where it waives the rights of the state and the legislature has provided that it will have retrospective effect. Here, it is clear that the statute does not state that it has retrospective effect. Therefore, we look to see whether the statute authorizing an award of attorney fees to a successful appellant should be considered procedural or substantive.

In this case, the Director determined that Mr. Wellner’s driving privilege should be suspended and notified him of this action on October 27, 1995. Mr. Wellner filed a petition in the circuit court for a trial de novo challenging the suspension. On June 3, 1996, the trial court entered judgment sustaining the Director’s suspension or revocation of Mr. Wellner’s driving privilege, and Mr. Wellner filed his notice of appeal on July 9, 1996. Section 302.536 became effective on August 28, 1996. The issue is whether the trial court’s application of § 302.536 is an erroneous retrospective application of a substantive law, or whether the statute is merely procedural.

This court faced a markedly similar issue in Warren, 820 S.W.2d at 565. The statute at issue in Warren was § 536.087, RSMo Cum.Supp.1989, which provided for awarding attorney fees and costs to the prevailing party in an administrative agency proceeding. Id. The statute went into effect eighteen days after a professional licensing board filed a disciplinary action against one of its licensees.

In determining whether § 536.087, RSMo Cum.Supp.1989, applied retrospectively to allow the licensee, as the prevailing party, to collect attorney fees and costs, this court considered several principles. This court first noted that a statute which provides a procedure for suing a state agency to collect attorney fees and costs constitutes a waiver of sovereign immunity. Id. Statutes waiving sovereign immunity must be construed strictly. Mo ses v. County of Jefferson, 910 S.W.2d 735, 736 (Mo.App.1995). This court then noted the general rule that newly enacted legislation is not applied retrospectively unless the legislature makes clear its intention that a statute be applied retrospectively. Warren, 820 at 565. This prohibition against retrospective application of legislation applies only to substantive, and not procedural, laws. Id. Substantive laws are those which “ ‘take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already past.’” Id. at 566 (citations omitted). Applying these principles, this court in Warren then reasoned:

Before the enactment of § 536.087 there was no requirement that the state pay attorney fees or other expenses. The statute created a previously unrecognized right in certain prevailing litigants and imposed new obligations on the state by eliminating an immunity that it previously enjoyed. These factors define the law as substantive and its retrospective application as violative of vested rights. Therefore, the law cannot be applied retroactively!)]

Id.

All of the factors upon which this court relied in Warren to determine that § 536.087, RSMo Cum.Supp.1989, could not apply retrospectively are present in this case. First, the legislature enacted § 302.536, a provision allowing for the collection of attorney fees and costs when successful on appeal in license suspension and revocation cases, after the Director had acted to suspend Mr. Wellner’s driving privilege. Second, the legislature had not provided for the collection of attorney fees and costs in these types of cases until it enacted § 302.536. Thus, § 302.536 created a new obligation or imposed a new duty, and, therefore, is substantive in nature. See State ex rel. Webster v. Cornelius, 729 S.W.2d 60, 66 (Mo.App.1987). To apply the new statute to the Director’s prior action would constitute a retrospective application of a substantive law since the statute increases the penalty after the conduct to be penalized has already occurred. Garrett v. Citizens Sav. Ass’n, 636 S.W.2d 104, 110-11 (Mo.App.1982). Third, § 302.536 is silent on the issue of retrospective application, so it is presumed that the legislature did not intend to apply the statute retrospectively. Hence, we draw the same conclusion that we drew in Warren that, under these circumstances, the law cannot be applied retrospectively.

In American Family Mut. Ins. Co. v. Fehling, 970 S.W.2d 844, 848 (Mo.App. 1998), this court stated that there was an exception to the prohibition against retrospective application of statutes for “laws that waive the rights of the state.” The gist of the discussion in Fehling was that so long as the statute impaired the rights of the state, rather than the rights of its citizens, it could be applied retrospectively regardless of whether a legislative intent to apply the statute retrospectively is clear from the language of the statute. Id. at 851-52. To the extent that this court recognized such an exception in Fehling, it did so in dicta, and we fail to find any support in the law for such a view. The concept that a law can be retrospectively applied if it impairs the rights of the state has been applied only in conjunction with the principle which permits a statute to be applied retrospectively when the statute expressly states that it should be. To hold otherwise would result in the retrospective application of all laws which impair the vested rights of the state or waive sovereign immunity, and that contravenes the well-settled principle that courts presume that statutes apply only prospectively unless the legislature states otherwise.

The trial court erred in applying § 302.536 to Mr. Wellner’s case. Accordingly, the trial court’s judgment is reversed.

All concur.

      . All statutory references are to the Revised Statutes of Missouri Cumulative Supplement 1996, unless otherwise indicated.


author: HOLDER, J.,

text:
    Stephen Earl CRABTREE v. Nancy Choppin CRABTREE.
    Supreme Court of Tennessee, at Nashville.
    April 24, 2000.

      Mike W. Binkley, Nashville, Tennessee, for the Appellant, Stephen Earl Crabtree.
    Edward M. Yarbrough, Nashville, Tennessee, for the Appellee, Nancy Choppin Crabtree
   OPINION

HOLDER, J.,

delivered the opinion of the court,

in which ANDERSON, C.J., and DROWOTA, BIRCH, and BARKER, JJ., joined.

We granted this appeal to address whether a trial court may order concurrent or successive awards of alimony in futuro and rehabilitative alimony in the initial decree of divorce. We hold that the trial court erred in awarding alimony in futuro following a period of rehabilitative alimony. We modify the award of alimony in this case to a single award of rehabilitative alimony in the amount of $2,500 per month for a period of five years. As provided by statute, the trial court will retain jurisdiction for the duration of the rehabilitative alimony award. The awards of attorney’s fees are affirmed, and the case is remanded for further proceedings consistent with this opinion.

The parties were married for twenty-three years. Nancy Choppin Crabtree was forty-three years old at the time of the entry of the final decree of divorce. She graduated with highest honors from the University of Tennessee at Knoxville and became a certified public accountant. Ms. Crabtree worked two years for the accounting firm of Ernst and Whinney. She then decided to leave her full-time employment position to start a family but continued to work out of her home as a certified public accountant. In the year prior to the divorce, she earned approximately $41,200 per year working thirty hours per week. She had approximately 100 clients.

Stephen Earl Crabtree was a stockbroker at J.C. Bradford. Mr. Crabtree’s gross income varied during the six years prior to the divorce. At the time of trial in 1997 his net monthly income was $13,-582.71, including his partnership distribution. Both Mr. Crabtree and Ms. Crab-tree enjoy good health.

The parties are the parents of two daughters. At the time of trial, Elizabeth Lee was nineteen years old and enrolled at Georgetown University. Jennifer Lynn was sixteen years old and enrolled at Har-peth Hall, a private school. Jennifer Lynn was expected to graduate from high school in 1999.

Mr. Crabtree admitted to adultery, and the divorce was granted on the stipulated grounds of inappropriate marital conduct. Mr. Crabtree was awarded marital property valued at approximately $465,000. Ms. Crabtree was awarded marital property valued at approximately $373,000 and child support in the amount of $1,312 per month. The trial court awarded rehabilitative alimony in the amount of $1,700 per month for five years to be followed by alimony in futuro in the amount of $1,200 per month until Ms. Crabtree’s death or remarriage. Finally, the trial court ordered Mr. Crab-tree to pay $7,500 of Ms. Crabtree’s attorney’s fees.

Mr. Crabtree appealed the trial court’s award of alimony in futuro and the award of attorney’s fees. Ms. Crabtree raised an issue regarding child support. The Court of Appeals affirmed the trial court’s award of both alimony and attorney’s fees but remanded the case on the issue of child support. The appellate court ordered that on remand the trial court should apply the child support guidelines and that any deviation from the guidelines must be supported by written findings. The parties do not appeal this issue. The Court of Appeals also awarded Ms. Crabtree additional attorney’s fees incurred on appeal. We granted review to address whether the order of alimony in futuro following a period of rehabilitative alimony in the initial decree was error.

ANALYSIS

Mr. Crabtree argues that the trial court erred in awarding Ms. Crabtree alimony in futuro in addition to rehabilitative alimony. In support of this argument, he contends that she should receive only rehabilitative alimony due to her earning capacity as a certified public accountant.

The alimony and child support statutes are codified at TenmCode Ann. § 36-5-101, et. seq. Rehabilitative alimony is addressed in TenmCode Ann. § 36-5-101(d) (1992) and provides:

It is the intent of the general assembly that a spouse who is economically disadvantaged, relative to the other spouse, be rehabilitated whenever possible by the granting of an order for payment of rehabilitative, temporary support and maintenance. Where there is such relative economic disadvantage and rehabilitation is not feasible in consideration of all relevant factors, including those set out in this subsection, then the court may grant an order for payment of support and maintenance on a long-term basis or until the death or remarriage of the recipient except as otherwise provided in subdivision (a)(3).

Id. Accordingly, the legislature has demonstrated a preference for an award of rehabilitative alimony to rehabilitate an economically disadvantaged spouse.

The legislature has provided statutory criteria to be employed when determining the appropriate form and duration of spousal support. Tenn.Code Ann. § 36-5-101(d)(1). When determining:

the nature, amount, length of term, and manner of payment, the court shall consider all relevant factors, including:
(A) The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources;
(B) The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party’s earning capacity to a reasonable level;
(C) The duration of the marriage;
(D) The age and mental condition of each party;
(E) The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;
(F) The extent to which it would be undesirable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage;
(G) The separate assets of each party, both real and personal, tangible and intangible;
(H) The provision made with regard to the marital property as defined in § 36-4-121;
(1) The standard of living of the parties established during the marriage;
(J) The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;
(K) The relative fault of the parties in cases where the court, in its discretion, deems it appropriate to do so; and
(L) Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

TenmCode Ann. § 36 — 5—101(d)(1).

This Court previously addressed the application of TenmCode Ann. § 36-5-101(d)(1) in Self v. Self, 861 S.W.2d 360 (Tenn.1993). In Self we held that § 36-5-101 reflects an obvious legislative policy to eliminate the dependency of one ex-spouse upon the other and to relieve the parties of “impediments incident to the dissolved marriage.” Id. at 361. Accordingly, alimony in futuro should be awarded only when the trial court finds that “economic rehabilitation is not feasible and long-term support is necessary.” Id.

The legislature amended TenmCode Ann. § 36-5-101 while the Self appeal was pending in this Court. The amendment permitted modifications of rehabilitative alimony awards and provided:

An award of rehabilitative, temporary support and maintenance shall remain in the court’s control for the duration of such award, and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of substantial and material change in circumstances .... The recipient of the support and maintenance shall have the burden of proving that all reasonable efforts at rehabilitation have been made and have been unsuccessful.

Tenn.Code Ann. § 36 — 5—101(d)(2) (emphasis added). This amendment, however, was inapplicable to our analysis in Self due to the effective date of the amendment. Nonetheless, we recognized in Self that the amended form of the statute provides courts with the authority to order awards designed to accomplish the rehabilitation of a spouse. Self, 861 S.W.2d at 363. We noted that this provision would allow for a continued monitoring of the parties’ circumstances and would provide trial courts with more flexibility in designing suitable financial arrangements for the dissolution of marriages. Id.

In this case, the Court of Appeals recognized that the award of rehabilitative alimony would assist Ms. Crabtree in realizing her full economic potential. The intermediate appellate court, however, was concerned that rehabilitative alimony would:

not place her anywhere near an equal footing with Husband nor will she be able to continue living in the manner in which she had become accustomed during this twenty-three year marriage. The award of alimony in futuro will further assist her in this regard and provide her with “closing in” money.

The court cited Aaron v. Aaron, 909 S.W.2d 408, 411 (Tenn.1995), in support of its conclusion.

We believe that the Court of Appeals’ reliance on Aaron was misplaced. In Aaron this Court awarded alimony in futuro to a homemaker with a high school education who had never worked outside the home. This Court noted that although the award would “not put her in the same position in which she was prior to the divorce, it will provide her with ‘closing in’ money; that is she will be enabled to more closely approach her former economic position.” Aaron, 909 S.W.2d at 411. This statement, however, was intended neither to provide a new standard for awarding alimony nor to suggest that every spouse should be entitled to be placed in the same financial condition occupied prior to the divorce. Aaron merely acknowledged that, where rehabilitation is not feasible, an award of alimony in futuro will not always be sufficient to place a disadvantaged spouse in the financial position occupied pre-divorce.

If an award of rehabilitative alimony is justified by the parties’ circumstances, a trial court initially should award rehabilitative alimony only. An award of rehabilitative alimony pursuant to Tenn. Code Ann. § 36-5-101 must be predicated upon a finding that the recipient can be economically rehabilitated. Once awarded, rehabilitative alimony may be modified if the recipient’s prospects for economic rehabilitation materially change. If rehabilitation is not feasible, the trial court may then make an award of alimony in futuro. Accordingly, a concurrent award of both types of alimony is inconsistent. At the time of the decree, a trial court must necessarily find that the recipient of alimony either can be or cannot be rehabilitated although that determination is subject to later modification. Allowing concurrent awards of alimony in futuro and rehabilitative alimony would require a trial court to engage in an act of clairvoyance. The trial court would not only be required to anticipate the duration necessary for rehabilitation but would also be required to anticipate the future needs of a spouse who, it has been determined, can be rehabilitated.

We recognize that a trial court has wide discretion in determining whether an award of alimony should be rehabilitative or in futuro. Appellate review of findings of fact by the trial court are de novo upon the record accompanied by a presumption of the correctness of the findings. See Tenn. R.App. P. 13(d). See also Hanover v. Hanover, 775 S.W.2d 612, 617 (Tenn.Ct.App.1989) (amount of alimony awarded is largely a matter left to the discretion of the trial court, and the appellate courts will not interfere except in the case of an abuse of discretion). The trial court is required to consider the factors set forth at TenmCode Ann. § 36-5-101(d)(1)(A) — (L). In this case, the trial court stated that it considered the entire record prior to its ruling. It did not, however, make findings of fact with regard to the factors considered. Accordingly, there are no findings of fact that we may presume to be correct. We therefore must conduct our own independent review of the record to determine where the preponderance of the evidence lies. See Brooks v. Brooks, 992 S.W.2d 403, 405 (Tenn.1999).

We conclude that an award of alimony in futuro in this case is not justified and does not recognize or further the legislative purpose of encouraging divorced spouses to become self-sufficient. The trial court recognized that Ms. Crabtree’s rehabilitation was feasible. That conclusion is supported by the record. Both parties have received sufficient education to enable them to compete in the workforce. At the time of the decree, Mr. Crabtree’s earning capacity was greater than that of Ms. Crabtree. TenmCode Ann. § 36-5-101(d)(l)(A). It is clear from the record, however, that Ms. Crabtree’s earning capacity exceeds her current earnings. Ms. Crabtree is a forty-three-year-old college graduate who is a certified public accountant. TenmCode Ann. § 36-5-101(d)(l)(B), (D). Her skills were sufficient for her to be employed by a large accounting firm. After leaving that firm to start a family, Ms. Crabtree worked part-time without interruption until the time of trial. At trial, Mr. Crabtree provided the only estimate of Ms. Crabtree’s earning capacity. He testified that she could earn between $65,000 and $100,000 annually. There has been no testimony that Ms. Crabtree will need further training to “improve [her] earning capacity to a reasonable level.” Tenn.Code Ann. § 36-5 — 101(d)(1)(B).

Neither party has health problems. TenmCode Ann. § 36-5-101(d)(l)(D), (E). With her younger daughter’s graduation from high school in 1999, Ms. Crabtree’s need to work part-time has diminished. Tenn.Code Ann. § 36-5-101(d)(l)(F). Although Mr. Crabtree admitted to adultery, the divorce was granted on the stipulated grounds of inappropriate marital conduct. There was no testimony concerning the relative fault of the parties. The trial court, accordingly, made no findings with regard to this factor. Tenn.Code Ann. § 36 — 5—101 (d)(1) (K).

The division of marital property provided Ms. Crabtree with $373,000, or approximately 45% of the parties’ assets. Part of the award was in the form of the marital residence, which was estimated to have a net value of $145,223. No appeal was taken from the trial court’s division of the parties’ marital assets. TenmCode Ann. § 36 — 5—101(d)(1)(H).

After reviewing the relevant statutory factors and the record in this case, we affirm the trial court’s award of rehabilitative alimony for a period of five years. While holding that alimony in futuro is inappropriate at this time, we recognize that we have eliminated the income stream the trial court found was needed by Ms. Crabtree. We shall, therefore, modify the amount of the award of rehabilitative alimony to recognize the effect of our holding. Applying the factors set forth in Tenn.Code Ann. § 36 — 5—101(d)(1), we increase the trial court’s award of rehabilitative alimony from $1,700 per month for five years to $2,500 per month for five years. This increase in rehabilitative alimony will assist Ms. Crabtree in making the transition from part-time to full-time employment before her alimony is scheduled to end. As required by statute, the trial court will retain jurisdiction of the award of rehabilitative alimony during the pendency of the rehabilitative alimony award. The award of alimony in futuro is reversed.

CONCLUSION

We hold the trial court erred in awarding alimony in futuro following a period of rehabilitative alimony in the initial decree of divorce. We affirm the trial court’s award of rehabilitative alimony for a period of five years. The amount of the award is increased to $2,500 per month. The award of alimony in futuro is reversed. As provided by statute, the trial court will retain jurisdiction for the duration of the rehabilitative alimony award. We have reviewed the award of attorney’s fees in this case, and we have found no abuse of discretion. The trial court’s award of attorney’s fees in the amount of $7,500 is affirmed. The Court of Appeals awarded additional attorney’s fees to Ms. Crabtree and remanded the case to the trial court for a determination of the amount of that award. We affirm the Court of Appeals in this respect.

The case is remanded to the trial court for further proceedings consistent with this opinion. The costs of the appeal to this Court only shall be assessed equally against Mr. and Ms. Crabtree for which execution may issue if necessary.

      . The evidence demonstrates that Mr. Crab-tree earned $230,943 in 1991, $387,073 in 1992, $353,225 in 1993, $254,437 in 1994, $400,864 in 1995, and $417,034 in 1996.

      . At trial, Mr. Crabtree testified that Ms. Crabtree had been working only part-time and undercharging her clients. He testified that she could increase her earnings by increasing her client base and by raising her fee for services.

      . The cost of private schooling and of the children’s college educations will be paid by Mr. Crabtree.

      . In cases in which there is a disparity between the relative earning capacities of the parties, a trial court also may consider adjusting the award of marital assets to assist the disadvantaged spouse. Having made that adjustment, this factor then becomes one of those factors to be considered in determining the proper award of alimony. Tenn.Code Ann. § 36-5-101(d)(1)(H).


author: BARKER, J., Justice BIRCH,

text:
    Adolph C. LAVIN, et al. v. Ross JORDON, et al.
    Supreme Court of Tennessee, at Nashville.
    April 24, 2000.

      John L. Norris, Nashville, Tennessee, for Appellants, Ross Jordon, Susan Jor-don, and Sean Jordon.
    Charles R. Ray, Nashville, Tennessee; Jeffery S. Frensley, Nashville, Tennessee, for Appellees, Adolph C. Lavin and Jean Lavin.
   BARKER, J.,

delivered the opinion of the court,

in which ANDERSON, C.J., and DROWOTA and HOLDER, JJ., joined.

OPINION

The nature of this appeal regards the amount of damages recoverable in an action against parents for the intentional damage caused by their children. More specifically, we granted this appeal to determine whether Tennessee Code Annotated section 37-10-103(a) represents a codification of the common law tort allowing unlimited damages, or whether section 37-10-103(a) merely sets forth the circumstances under which parents may be held liable and is therefore subject to the statutory cap on damages contained in section 37-10-102. For the reasons stated herein, we hold that the legislature intended for section 37-10-103(a) to set forth the basis of parental liability and not to provide for an independent cause of action. We further hold that the common law tort of negligent control and supervision of children, as recognized by Bocock v. Rose, 213 Tenn. 195, 373 S.W.2d 441 (1963), has been superseded by section 37-10-103 when the damage caused by the child was intentional or malicious. As such, any recovery against parents for the intentional or malicious harm caused by their children may not exceed $10,000 in addition to taxable court costs. We are constrained to reverse the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.

This ease arises out of the shooting death of Troy Lavin, who was the son of the plaintiffs, Adolph and Jean Lavin. On June 29, 1995, Troy delivered a pizza to the Nashville home of the defendants, Ross and Susan Jordon. Shortly after his arrival at the defendants’ house, Troy was killed by multiple shots from a .22 caliber rifle fired by Sean Jordon, the minor son of the defendants. Sean Jordon, who later pled guilty to second-degree murder, was previously unacquainted with Troy.

On April 18, 1996, the plaintiffs filed a complaint in the Davidson County Circuit Court alleging that the defendants were hable for the acts of their son pursuant to the common law tort of negligent supervision and Tennessee Code Annotated sections 37-10-101 and -103. More specifically, the complaint alleged that the defendants were negligent in failing to control and police Sean Jordon despite their knowledge that Sean possessed weapons. According to the complaint, the defendants were informed by Mrs. Frances Garrison that Sean broke into her home and stole several rifles and shotguns. The complaint also alleged that Susan Jordon later overheard a telephone conversation in which her son admitted to stealing the weapons from Mrs. Garrison and hiding them near his house. Sean Jordan later admitted that the .22 caliber rifle used to kill Troy Lavin was one of the weapons he stole from Mrs. Garrison.

The complaint further alleged that the defendants had knowledge that their son possessed a previous “history of assaultive, violent, anti-social criminal behavior,” as evidenced by Sean having been previously declared a delinquent child for assaulting a minor and for assaulting and raping a school mate. The complaint also alleged that even though the defendants knew that Sean aspired to be a “gangster” and that he was actively associated with a violent gang, they nevertheless failed to take steps to fully investigate the theft of the weapons or to reasonably control their son. The plaintiffs sought compensatory and punitive damages in the amount of two-million dollars ($2,000,000.00).

On June 25, 1997, the defendants filed a motion for judgment on the pleadings arguing that according to Tennessee Code Annotated sections 37-10-101, -102, and - 103, the maximum potential liability of the defendants was $10,000. After a hearing, the trial court granted the defendant’s motion and held that the plaintiffs’ recovery was limited to $10,000. The plaintiffs then filed a motion for interlocutory appeal, which was granted by the trial court and by the Court of Appeals.

The Court of Appeals reversed the decision of the trial court and held that the plaintiffs had stated a “common law cause of action against the parents of Sean Jor-don to which the limiting statute is inapplicable.” The Court of Appeals stated that while damages awarded pursuant to the parental liability statute were capped at ten-thousand dollars, the common-law cause of action for the same tort was unaffected by the statute and permitted the parents to seek full recovery. The defendants then sought appeal to this Court arguing that sections 37-10-101, -102, and -103 limited the defendants’ liability for all claims of negligent control and supervision of minor children to the plaintiffs’ actual damages not exceeding $10,-000. We agree and hold that the common law tort of negligent control and supervision of minor children has been superseded by statute where the acts of the child are intentional or malicious, and we therefore reverse the judgment of the Court of Appeals.

STANDARD OF APPELLATE REVIEW

Because this case was dismissed on a motion for judgment on the pleadings pursuant to Tennessee Rule of Civil Procedure 12.03, all well-pleaded facts and all reasonable inferences drawn therefrom must be accepted as true. See McClenahan v. Cooley, 806 S.W.2d 767, 769 (Tenn.1991). As such, the issue before this Court is whether Tennessee Code Annotated sections 37-10-101, -102, and -103 operate to limit the plaintiffs potential recovery in this case. Id. Construction of a statute and its application to the facts of the case is an issue of law, see Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997), and our standard of review, therefore, is de novo without any presumption of correctness given to the trial court’s conclusions of law. See, e.g., Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993).

ANALYSIS

Because resolution of this case turns upon the construction given to the parental liability statutes, it is necessary to start our analysis with a review of these statutes. The current text of these statutes is as follows:

37-10-101. Recovery for injury or damage by juvenile.—
Any municipal corporation, county, town, village, school district or department of this state, or any person, or any religious organization, whether incorporated or unincorporated, shall be entitled to recover damages in an action in assumpsit in an amount not to exceed ten thousand dollars ($10,000) in a court of competent jurisdiction from the parents or guardian of the person of any minor under eighteen (18) years of age, living with the parents or guardian of the person, who maliciously or willfully causes personal injury to such person or destroys property, real, personal or mixed, belonging to such municipal corporation, county, township, village, school district or department of this state or persons or religious organizations.
37-10-102. Limitation on amount of recovery.—
The recovery shall be limited to the actual damages in an amount not to exceed ten thousand dollars ($10,000) in addition to taxable court costs.
37-10-103. Circumstances under which parent or guardian liable.—
(a) A parent or guardian shall be liable for the tortious activities of a minor child that cause injuries to persons or property where the parent or guardian knows, or should know, of the child’s tendency to commit wrongful acts which can be expected to cause injury to persons or property and where the parent or guardian has an opportunity to control the child but fails to exercise reasonable means to restrain the tortious conduct.
(b) A parent or guardian shall be presumed to know of a child’s tendency to commit wrongful acts, if the child has previously been charged and found responsible for such actions.

Tenn.Code Ann. §§ 37-10-101 to -103 (1996 & Supp.1999).

I.

The plaintiffs first argue that section 37-10-103 represents a codification of the common law tort of negligent control and supervision of children and that any action commenced under this section is not subject to the statutory cap on damages in section 37-10-102. The defendants, however, argue that section -103 is not an independent cause of action and that the section only serves to set forth the circumstances under which a parent may be held liable for the acts of their children as provided in section 37-10-101. According to this interpretation, the section -102 cap on damages would apply to limit the amount of any recovery.

When construing or interpreting statutes, the “essential duty” of this Court is “to ascertain and carry out the legislature’s intent without unduly restricting or expanding a statute’s coverage beyond its intended scope.” See, e.g., Premium Fin. Corp. of Am. v. Crump Ins. Servs. of Memphis, Inc., 978 S.W.2d 91, 93 (Tenn. 1998). In so doing, we are to examine the “natural and ordinary meaning of the language used, without a forced or subtle construction that would limit or extend the meaning of the language.” See, e.g., Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 105, 107 (Tenn.1996). Where the language of the statute is clear and unambiguous, then this Court will give effect to the statute according to the plain meaning of its terms. See State ex rel. Earhart v. City of Bristol, 970 S.W.2d 948, 951 (Tenn. 1998).

After a careful review of the text of the statutes, we conclude that the plain language does not clearly resolve the issue of whether section -103 represents a separate cause of action that permits unlimited damages. In fact, the language of the statute seems to provide support for both positions. For example, the absence of a statutory cap in section -103, along with the presence of a statutory cap in sections -101 and -102, certainly lends credibility to the plaintiffs’ argument that section -103 constitutes an independent cause of action whose damages are not limited. On the other hand, the actual language of section -103 seems only to provide the circumstances under which parents are liable when the criteria of section -101 are satisfied. Further, the inclusion of section -103 in the same chapter and part as sections -101 and -102 is certainly evidence that section -103 was not intended to operate as a separate cause of action.

When the plain language of the statute is reasonably capable of conveying more than one meaning, the statute is rendered ambiguous, and the intent of the legislature cannot be reliably derived from the language alone. When statutes are ambiguous, the legislative intent may be derived from the “subject matter [of the statute], the object and reach of the statute, the wrong or evil which it seeks to remedy or prevent, and the purpose sought to be accomplished in its enactment.” See State v. Lewis, 958 S.W.2d 736, 739 (Tenn.1997) (citing Mascari v. Raines, 220 Tenn. 234, 239, 415 S.W.2d 874, 876 (1967)).

We find that the history and purpose of the parental liability statute are particularly relevant in assessing the scope and operation of section 37-10-103. At common law, parents could not be held liable in the absence of a statute for the intentional torts committed by their children. See Nichols v. Atnip, 844 S.W.2d 655, 658 (Tenn.Ct.App.1992); see also Bocock v. Rose, 213 Tenn. 195, 201, 373 S.W.2d 441, 444 (Tenn.1963). Instead, the common law held that because a child was considered to be a separate legal entity, the child was actually responsible for his or her own torts, and any remedy sought had to be satisfied by the child personally. Nevertheless, because children are’usually not financially able to satisfy a judgment, victims of juvenile torts under the common law rule typically went uncompensated. See W. Page Keeton, et al., Prosser and Keeton on Torts § 123 (5th ed.1984).

To alleviate the harshness of this common law rule with respect to plaintiffs, virtually all state legislatures passed statutes allowing plaintiffs to seek recovery against negligent parents or guardians of a juvenile tortfeasor. Id. In 1957, the Tennessee General Assembly first enacted a statute allowing for a very limited recovery against parents or guardians for intentional property damage caused by their children. The text of the original 1957 statute read as follows:

Section 37-1001. Any municipal corporation, county, township, village, school district or department of the State of Tennessee, or any person, or any religious organization, whether incorporated or unincorporated, shall be entitled to recover damages in an action in assump-sit in an amount not to exceed three hundred dollars ($300.00) in a court of competent jurisdiction from the parents or guardian of the person of any minor under the age of 18 years, living with the parents or guardian of the person who shall maliciously or willfully destroy property, real, personal or mixed, belonging to such municipal corporation, county, township, village, school district or department of the State of Tennessee or persons or religious organizations. Section 37-1002. The recovery shall be limited to the actual damages in an amount not to exceed $300.00 in addition to taxable court costs.
Section 37-1003. No recovery shall be had if the parent or guardian of the person shows due care and diligence in his care and supervision of such minor child.

TenmCode §§ 37-1001 to -1003 (originally enacted as 1957 Tenn. Pub. Acts ch. 76).

As evidenced by the words “no recovery shall be had if,” section 37-1003 of the ' original statute appears to have only limited the circumstances under which liability may be imposed by section 1001; it did not contemplate a separate cause of action against the parents for their negligence. Indeed, if read in isolation and apart from section -1001, section -1003 could not constitute an independent cause of action for the simple reason that it did not proscribe any wrong for which remedy may be sought. As such, it is clear that all three sections of the 1957 statute were intended to apply to the same cause of action and that each section of that statute should be read in conjunction with the others.

The next major substantive amendments to the parental liability statute came in 1981, In that year, the language of section 37-1003 was significantly changed to further define the circumstances under which parents or guardians are held liable for the acts of their children. In so doing, The General Assembly deleted the original section -1003 in its entirety and substituted the following language in its place:

A parent or guardian shall be liable for the tortious activities of a minor child that causes injuries to property where a parent or guardian knows, or should know, of the child’s tendency to commit wrongful acts which can be expected to cause injury to property, and where the parent or guardian has an opportunity to control the child but fails to exercise reasonable means to restrain the tortious conduct.
A parent or guardian shall be presumed to know of a child’s tendency to commit wrongful acts, if the child has previously been charged and found responsible for such actions.

1981 Tenn. Pub. Acts ch. 160, § 3.

As the legislative debates in both the Senate and House of Representatives indicate, the sponsors of the bill amending section 37-1003 did not intend for the new language of section — 1003 to establish a separate cause of action against parents; rather, the sponsors only intended to clarify the circumstances under which parents could be held liable. For example, the primary sponsor of the bill in the House of Representatives, Representative Bobby Wood, stated that the intent of deleting the original section -1003 was to “replace it with three definitions of when a parent would be responsible for the actions of a child.” The bill’s sponsor in the Senate also stated that section 3 of the bill “changes the language in the Code” to clarify when parents would be held responsible. We also find significant that the title of the 1981 bill was “an act to increase the amount of recovery against a parent or guardian for the act of a minor, to modify the defense to such suit, and to amend Tennessee Code Annotated Title 37, Chapter 10.” See 1981 Tenn. Pub. Acts ch. 160 (emphasis added).

With the exception of amendments in 1985 adding parental liability for personal injury as well as property damage, section 37-1003, since re-codified as section 37-10-103, has remained substantively unaltered since 1981. As evidenced by the original language of the statute, by the language of the amended section, and by the legislative debates concerning the amended section, we hold that section 37-10-103 was intended only to set forth the circumstances under which parents could be held liable. In fact, we find no evidence that section 37-10-103 has ever been intended to provide for a cause of action separate and independent of that presently stated in section 37-10-101. Accordingly, the plaintiffs’ argument in this respect is without merit.

II.

The plaintiffs also argue that the 1981 and 1985 amendments did not supersede the common law with regard to parental liability as established by our decision in Bocock v. Rose, 213 Tenn. 195, 373 5.W.2d 441 (1963). Regretfully, we must again disagree. In Bocock, this Court held that although parents could not be held hable for the torts of their children merely because of the parent/child relationship, parents could be held liable for their own negligence in failing to exercise reasonable restraint upon a minor with a known propensity to commit assault. Acting to change the common law with respect to parental liability for personal injury caused by a child tortfeasor, this Court stated,

We find and so hold parents may be held hable for the dangerous habits of their minor children causing injuries and damages to others, when, (1) the parent has opportunity and ability to control the child, and (2) the parent has knowledge, or in the exercise of due care should have knowledge, of the child’s habit, propensity or tendency to commit specific wrongful acts, and (3) the specific acts would normally be expected to cause injury to others, and (4) the parent fails to exercise reasonable means of controlling or restraining the child.

Bocock, 213 Tenn. at 202, 373 S.W.2d at 445. Interestingly, the Court did not make reference to the 1957 statute or to the fact that the General Assembly had similarly modified the common law with respect to property damage, despite the fact that Bocock was decided six years after sections 37-1001, -1002, and -1003 were enacted.

When the General Assembly amended the parental liability statutes in 1981 and 1985, it extended parental liability for the intentional or malicious actions of minors to situations involving personal injury as well as property damage. See 1985 Tenn. Pub. Acts ch. 439. In so doing, the legislature seems to have taken the language directly from our decision in Bocock. We are not inclined to concede the extreme similarity in language to mere coincidence, because the “Legislature is presumed to know the state of the law on the subject under consideration at the time it enacts legislation.” See, e.g., Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 899 (Tenn.1992). Indeed, a close examination of the current language of section -103(a) imposing liability on parents for personal injury caused by their children reveals that it is virtually identical to our language in Bocock,

While the General Assembly has plenary power within constitutional limits to change the common law by statute, see Southern Ry. Co. v. Sanders, 193 Tenn. 409, 415, 246 S.W.2d 65, 67 (1952), the “[r]ules of the common law are not repealed by implication, and if a statute does not include and cover such a case, it leaves the law as it was before its enactment.” Monk v. Ramsey, 223 Tenn. 247, 252, 443 S.W.2d 653, 655 (1969). Nevertheless, “[w]hen there is a conflict between the common law and a statute, the provision[s] of the statute must prevail.” Graves v. Illinois Cent. R. Co., 126 Tenn. 148, 158, 148 S.W. 239, 242 (1912).

In comparing the parental liability cause of action with our decision in Bocock, we are constrained to conclude that the basis of liability imposed by the statute and by our decision in Bocock are virtually identical with respect to intentional torts committed by children. Although parental liability under the 1957 appears to have been technically grounded in vicarious liability, the plain language of the 1981 and 1985 amendments fundamentally changed the nature of the cause of action. Unlike the original version of section -1008, the current section -103(a) does not contain any language that would require the defendant to prove “due care and diligence.” Instead, section -103(a) now states that “[a] parent or guardian shall be liable for the tortious activities of a minor child that causes injuries to persons or property where....” As this language makes clear, lack of parental negligence is no longer merely a defense to liability; parental negligence is now the basis of that liability. In other words, unlike the original statute, plaintiffs now need to show more than the mere existence of a parent/child relationship to establish a prima facie case; plaintiffs must now show that the parents are actually at fault before any liability can attach.

As a general rule of statutory construction, a change in the language of the statute indicates that a departure from the old language was intended. See Dunn v. Hackett, 833 S.W.2d 78, 81 (Tenn.Ct.App. 1992). Although the fundamental change in language is evidence that the legislature intended to change the operation of the statute, we are further persuaded that the legislature intended a substantive change because of the strong similarity between the language of section -103(a) and the language of our holding in Bocock v. Rose. Because the General Assembly sought to regulate by statute that which was already governed by common law, and because a conflict exists with respect to damages between the parental liability statute and the common law, we must hold that the statute prevails over the common law and that damages in this case are capped at $10,-000.

III.

We recognize that in construing statutes duly enacted by the legislature, it is our duty to ascertain and give effect to the intention and purpose of the legislature, even if the particular result reached is one that we find distasteful. Generally speaking, the “wisdom, or unwisdom!,] of a statute lies solely with the Legislature and is not the concern of the Court.” Hoover Motor Express Co. v. Hammer, 201 Tenn. 270, 275, 298 S.W.2d 724, 726 (1957). We also recognize that this Court does not typically function as a forum for resolution of public policy issues when interpreting statutes, and that in such cases, we should seek to decide only the legal case or controversy presented by the particular parties before us. See Smith v. Gore, 728 S.W.2d 738, 747 (Tenn. 1987).

Nevertheless, we find that the result compelled by the statute in this case is particularly distasteful in that the plaintiffs, who have lost their son to a senseless act of malicious violence, are denied the opportunity to be made whole for their loss. If the plaintiffs are able to prove damages exceeding $10,000, then the present remedy is plainly inadequate and wholly insufficient to compensate the plaintiffs for the injury they have suffered. Perhaps the General Assembly will revisit the issue of whether the statutory cap on damages contained in section 37-10-102 provides an adequate and sufficient remedy, especially in cases when personal injury results in death.

CONCLUSION

We hold that Tennessee Code Annotated section 37-10-103(a) does not establish an independent cause of action against parents for the intentional acts of their children. We also hold that the common law in this regard has been superseded by statute, at least in so far as intentional or malicious injury to persons or property is concerned. Consequently, the total amount of damages recoverable by the plaintiffs in this case based upon allegations of intentional conduct by the defendants’ minor child is governed by Tennessee Code Annotated section 37-10-102. Although we recognize that the wisdom of certain statutes is generally a question for the General Assembly, the legislature may wish to reconsider the effect that section 37-10-102 has upon cases such as this one. The judgment of the Court of Appeals is reversed, and this case is remanded to the Davidson County Circuit Court for further proceedings consistent with this opinion.

Costs of this appeal are assessed to the plaintiffs / appellees, Adolph and Jean La-vin.

BIRCH, J., filed a dissenting opinion.

Justice BIRCH,

dissenting.

I agree with my colleagues in the majority with respect to two conclusions:

1. The maximum amount recoverable under Tenn.Code Ann. §§ 37-10-101 to -103 (1996 & Supp.1999) is $10,000; and
2. TenmCode Ann. § 37-10-103 (1996 & Supp.1999) does not provide a cause of action separate from that provided in Tenn.Code Ann. §§ 37-10-101 to -102 (1996 & Supp.1999).

Chief among our points of disagreement is my firm conviction that the cause of action for negligent parental supervision as established by and refined in Bocock v. Rose remains, in my opinion, viable, extant, and uncapped in the amount of damages recoverable. Thus, I cannot agree that the statutes under discussion provide the sole vehicle for the redress of injuries caused by negligent parental supervision.

My colleagues express the view that TenmCode Ann. § 37-10-103 does not provide a defense to the cause of action established in TenmCode Ann. §§ 37-10-101 and -102. They concede, however, that when the parental liability statutes at issue in this case were first enacted in 1957, the defense of due care and diligence was available to the defendant-parent According to the majority, the 1981 amendment to the paternal liability statutes abolished the defense that had been intact since the enactment of the original 1957 statute. Moreover, the majority opines that what was then a defense before the 1981 amendment is now the basis for liability; that is, a cause of action brought under Tenn.Code Ann. §§ 37-10-101 to -103 is viable today only if the plaintiff can establish that the defendant’s conduct meets the requirements of TenmCode Ann. § 37-10-103. Under the majority’s analysis, what was once a shield is now a sword.

I cannot agree. The caption to the 1981 amendment of the statutes at issue plainly states that it is

AN ACT to increase the amount of recovery against a parent or guardian for the act of a minor child; to modify the defense to such a suit; and to amend Tennessee Code Annotated, Title 37, Chapter 10.

Caption, 1981 Tenn. Pub. Acts ch. 160 (emphasis added). A plain reading of this caption indicates that the legislature’s intent in 1981 was to modify the defense provided by the 1957 statute and not to delete or remove it.

The majority stresses that the “substantive” amendment to the statutes now codified as Tenn.Code Ann. §§ 87-10-101 to - 103 occurred in 1981, almost 25 years after the enactment of the original 1957 statute. In so stating, the majority glides by the fact that the 1957 parental liability statutes were amended in 1969 and 1976. Both the 1969 and 1976 amendments to the original 1957 statutes occurred after this Court decided Bocock and presumably with the legislature’s full knowledge of the case. See Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 899 (Tenn.1992) (stating that the “[legislature is presumed to know the state of the law on the subject under consideration at the time it enacts legislation”) If, as the majority implies, the legislature intended to remove the defense provided by the 1957 statute as a reaction to the 1964 Bocock decision, it could have been easily accomplished in 1969 or 1976, at the same time other portions of the same parental liability statutes were in the amendment process.

Finally, the majority states that Tenn. Code Ann. § 37-10-103 does not provide a cause of action independent from that established in TenmCode Ann. §§ 37-10-101 to -102, and that when the legislature acted to amend the parental liability statutes in 1981, the sponsors of the amendments “did not intend ... to establish a separate cause of action against parents ... [only] to clarify the circumstances under which parents could be held liable.” I agree that the legislature did not intend to establish a separate cause of action when it enacted the statute that is now codified at Tenn. Code Ann. § 37-10-103. It did not have to do so because one already existed, and had existed, since our 1964 decision in Bocock. Additionally, the majority’s assertion that TenmCode Ann. § 37-10-103 was provided by legislators merely “to clarify the circumstances under which parents could be held hable” is ambiguous. Inferentially, it would appear from the majority’s own argument that if the “circumstances” outlined by TenmCode Ann. § 37-10-103 of the current parental liability statute were not satisfied, that the parent would have — as I have argued — a defense to the action provided by TenmCode Ann. §§ 37-10-101 to -102.

For the reasons outlined above, I respectfully dissent. Tennessee Code Annotated § 37-10-103 provides a defense to the vicarious liability imposed by Tenn. Code Ann. § 37-10-101. Though the maximum amount recoverable under Tenn. Code Ann. §§ 37-10-101 to -103 is $10,-000, the cause of action for negligent parental supervision established by this Court in Bocock remains viable and unaffected by the statutory cap of $10,000. Thus, I adhere to my firmly held view that the Bocock cause of action and the statutory provisions each have independent existence and application.

      .The General Assembly did, however, make several minor changes to the law before 1981, such as raising the amount of damages recoverable and changing the age of the minor. See 1969 Tenn. Pub. Acts ch. 170 (increasing the amount recoverable from $300 to $2,500 and extending parental liability until the child reaches age 21); 1976 Tenn. Pub. Acts ch. 408 (increasing the amount recoverable from $2,500 to $5,000 and re-establishing parental liability to extend to children under age 18).

      . Section 1 of the same act also increased the statutory cap on liability from $5,000 to $10,-000. See 1981 Tenn. Pub. Acts ch. 160, § 1.

      . See Tape H-C & R-l (Mar. 5, 1981) (statement of Rep. Bobby Wood).

      . See Tape S-80 (March 30, 1981) (statement of Sen. Tommy Burks).

      . See 1985 Tenn. Pub. Acts ch. 439.

      . For example, both section 37-10-103(a) and Bocock impose liability when (1) the parents know or should know of the child’s propensity to commit wrongful acts; (2) the parents have an opportunity to control the child; (3) the child’s wrongful acts can be expected to cause injury to property; and (4) the parents fail to exercise reasonable means to restrain the child’s tortious conduct.

      . For example, to establish a prima facie case under the 1957 statute, the plaintiff did not need to show that the parents of the minor tortfeasor failed to exercise "due care and diligence”; rather, the plaintiff needed only to show that the minor "maliciously or willfully” destroyed property while living with his or her parents or guardians. The explicit language of section -1003 placed the burden of proof on defendants to show that they used "due care and diligence.”

      . 213 Tenn. 195, 373 S.W.2d 441 (1963).

      . Implicit in the majority’s assertion that the 1981 amendment abolished the defense provided by the original parental liability statute is a recognition that the defense provided by the 1957 statute survived amendments in both 1969 and 1976.

      . Indeed, the defendants whose liability was increased by the 1969 and 1976 amendments quite possibly thought them substantive.


author: PHIL HARDBERGER, Chief Justice.

text:
    CITY OF SAN ANTONIO and Mayor Bill Thornton, in his official capacity only, Appellants, v. Kevin SCOTT, Appellee.
    No. 04-99-00025-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 22, 1999.
    Rehearing Overruled Jan. 20, 2000.

      Bruce Robertson, Jr., Law Offices of Bruce Robertson, Jr., San Antonio, for appellants.
    Martha P. Owen, Wiseman, Durst, Tud-denham & Owen, P.C., Austin, for appel-lee.
    Sitting: PHIL HARDBERGER, Chief Justice, ALMA L. LÓPEZ, Justice and KAREN ANGELINI, Justice.
   OPINION

Opinion by:

PHIL HARDBERGER, Chief Justice.

Mayor Bill Thornton, in his Official Capacity only, and the City of San Antonio (“City”) appeal a judgment rendered in favor of Kevin Scott (“Scott”), ordering the City to promote Scott to the rank of captain in the San Antonio Fire Department and awarding Scott back pay, lost benefits, reasonable attorneys’ fees and costs. In three points of error, the City asserts two issues: (1) the trial court erred in concluding that the City was bound by section 143.014 of the Local Government Code; and (2) the trial court erred in concluding that the collective bargaining agreement was ambiguous and in finding that the fire chief was required to make appointments to vacancies in assistant fire chief positions within ninety days. We affirm the trial court’s judgment.

Factual and PROCEDURAL History

On March 1, 1994, Scott took the promotional exam for captain and was ranked twenty-first on the eligibility list as a result of his test score. The eligibility list expired on February 28, 1995. Before the expiration date, twenty vacancies occurred in captain positions, leaving Scott first on the eligibility list.

In July of 1994, an assistant fire chief retired. At that time, the vacancy in the assistant fire chief position could only be filled by a deputy chief or captain. The assistant fire chief vacancy was not filled until May 20, 1995, after the March 1, 1994, eligibility list expired.

Scott subsequently sued the City, alleging that the City violated the terms of the Civil Service Act which requires vacancies in the position of assistant fire chief to be filled within ninety days. If the ninety day requirement had been met, the appointment to the assistant fire chief vacancy would have been made by October 27, 1994, and a vacancy in a captain’s position would have been created that Scott would have received.

Scott moved for summary judgment, arguing that the Civil Service Act controls over the terms of the collective bargaining agreement. Summary judgment was granted in Scott’s favor, and the City appealed to this court. We reversed the summary judgment, holding: (1) Scott failed to prove that the San Antonio City Council approved the statutory appointment procedure that included the ninety day requirement by resolution or ordinance; and (2) a genuine issue of material fact was raised regarding whether the collective bargaining agreement provision which permitted the fire chief to appoint assistant fire chiefs “at his sole discretion” prevented the imposition of a time limit on that appointment power.

At the trial on remand, several of the union negotiators testified regarding the negotiations that led to the signing of the collective bargaining agreement. At the beginning of the negotiation process, the parties entered into ground rules that required all proposals by either party to be in writing. Scott introduced into evidence several of those written proposals that reflected the City’s demand that the fire chief be permitted to appoint assistant fire chiefs. No mention is made of any ninety day limitation. The union negotiators, who testified on Scott’s behalf, stated that the ninety day provision was never discussed. One witness testified that the union would not bargain for something they already had under the Civil Service Act. The City’s negotiators, however, testified that they recalled discussions where the union negotiators stated that if the fire chief wanted to leave the assistant fire chief position vacant indefinitely, the union did not care. Although the City could not produce anything in writing that referred to negotiations regarding the ninety day provision, one of the negotiators testified that his notes had been turned over to a federal grand jury who refused to release them for purposes of this litigation.

After hearing the evidence, the trial court entered judgment in favor of Scott. In the judgment, the trial court declares that the provisions of section 143.014 of the local government code are applicable to the City of San Antonio Fire Department through the San Antonio City Council’s approval of Ordinance Nos. 69712 and 64491. The trial court also entered numerous findings of fact and conclusions of law. The City timely filed this appeal.

STANDARD OF REVIEW

A trial court’s findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing the sufficiency of the evidence supporting jury findings. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). To determine whether there is legally sufficient evidence, all the record evidence and inferences must be viewed in a light most favorable to the findings. Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). Anything more than a scintilla of evidence is legally sufficient to support the findings. Id. In reviewing factual sufficiency issues, the reviewing court considers all of the evidence to determine whether the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). Conclusions of law are reviewéd de novo as legal questions. See Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App.— Waco 1997, writ denied).

Ninety Day Requirement

The parties stipulated that the City’s Fire Department has been governed by the provisions of the Firefighters and Police Officers’ Civil Service Act (contained in chapter 143 of the Local Government Code) since the 1950’s. Section 143.014(b) of the Civil Service Act states:

If approved by the governing body of the municipality by resolution or ordinance, the head of a fire or police department in the municipality in which at least four classifications exist below the classification of department head may appoint each person occupying an authorized position in the classification immediately below that of department head, as prescribed by this section.

Tex. Local Gov’t Code Ann. § 143.014(b) (Vernon 1999). This appointment procedure replaces the general method for making promotional appointments through the development of eligibility lists based on promotional examinations. See Tex. Local Gov’t Code Ann. §§ 143.036, 143.108 (Vernon 1999). Section 143.014 restricts the persons who can be appointed by the department head by listing qualifications that the person must have. Tex. Local Gov’t Code Ann. § 143.014(e) (Vernon 1999). In addition, section 143.014 requires the department head to make an appointment within 90 days after a vacancy occurs in a position. Tex. Local Gov’t Code Ann. § 143.014(f) (Vernon 1999).

The parties also stipulated that since 1974, the Fire Department has been governed by the provisions of the Fire and Police Employee Relations Act contained in chapter 174 of the Local Government Code. Tex. Local Gov’t Code Ann. §§ 174.001 et seq. (Vernon 1999). Section 174.006 of the Employee Relations Act provides that the Civil Service Act prevails over a collective bargaining contract unless the collective bargaining contract specifically provides otherwise. Tex. Local Gov’t Code Ann. § 174.006(a) (Vernon 1999).

In its first and third points of error, the City challenges the trial court’s findings of fact and conclusions of law relating to the trial court’s declaration that the appointment procedure contained in section 143.014 was binding on the City. The City asserts that in order for the appointment procedure contained in section 143.014 to have been approved, the City Council was required to adopt the appointment procedure envisioned by the statute. The City notes the appointment procedure contained in the collective bargaining contract varies from the statutory appointment procedure in three ways: (1) the collective bargaining contract permits appointment to positions two ranks below the fire chief, rather than just one rank as restricted by the statute; (2) the collective bargaining contract requires that the person to be appointed be a member of the Fire Department and occupy a rank of either Assistant Chief, District Chief, or Captain, while the statute requires that the person appointed meet the requirements for appointment as head of the fire department; and (3) the collective bargaining contract permits the appointments to be made at the sole discretion of the fire chief; no similar discretionary provision is contained in the statute. Since the appointment procedure contained in the collective bargaining contract is not consistent with the statutory provisions, the City contends that the approval of the collective bargaining contract was not an approval of section 143.014; therefore, the ninety day requirement is not applicable.

Scott counters that section 143.014(b) does not require that the precise appointment procedure outlined in the statute be adopted in all respects. Scott asserts that section 143.014 applies if the City Council adopts some type of appointment scheme. When the City Council approved the collective bargaining contracts that contained an appointment procedure, it necessarily approved section 143.014. Scott asserts that the Civil Service Act provides the backdrop for the collective bargaining. Since no discussion was had regarding the ninety day requirement, and since the ninety day requirement was not inconsistent with any provision in the collective bargaining agreement, it was applicable.

The trial court made specific findings of fact and conclusions of law with regard to this issue. The trial court found that the collective bargaining agreements, which were approved by City Council ordinances, approved an appointment procedure. The 1988 agreement contained a procedure which permitted the fire chief to appoint individuals to the two ranks immediately below his own, rather than requiring individuals to achieve these ranks through the regular civil service promotional route procedures. In 1991, the rank of deputy chief was abolished, and the rank of assistant chief became the rank below that of the fire chief. The trial court found that the City was obligated to abide by the ninety day requirement in appointing persons to the rank of assistant chief. The trial court noted that, in some instances, the collective bargaining agreement provides for something contrary to or different from the statutory provisions; however, the collective bargaining agreement contains no reference as to how long the fire chief has to make an appointment. During the negotiations, the parties were aware of the ninety day requirement, and the trial court found that the City never indicated that they wanted to have this requirement waived. The trial court further found that the inclusion of the phrase “in his sole discretion” was not intended to supplant the ninety day requirement. Based on these findings, the trial court concluded that the City Council approved an appointment scheme in accordance with section 143.014(b), and the fire chief was required to make the appointments within the ninety day period provided in section 143.014(f).

The Civil Service Act provided the basis for the collective bargaining between the City and the union. Tex. Local Gov’t Code Ann. § 174.006(a) (Vernon 1999). Nevertheless, the collective bargaining agreement can vary any provision in the Civil Service Act. Id. Although section 143.014 is limited in its application to appointments to the “classification immediately below” the department head, the collective bargaining agreement expanded this appointment procedure to two classifications below the department head by specifically providing for the appointment of both deputy chiefs and assistant chiefs. The extension of the collective bargaining agreement to the second-tier position (assistant chief) was permissible under section 174.006, as was the variance in the other provisions that would have been applicable under the section 143.014 appointment scheme if the collective bargaining agreement had not specifically provided otherwise.

By its approval of the collective bargaining agreement, the City Council approved an appointment procedure that permitted the fire chief to appoint persons “to the classification immediately below” the position of fire chief. At that time, the position was the deputy chief position; however, when the deputy chief position was eliminated, the “classification immediately below” the fire chief was the assistant chief. Since the City Council had already approved the appointment procedure to the “classification immediately below” the fire chief, the section 143.014 appointment procedure became applicable to assistant chiefs upon the elimination of the deputy chief position. The statutory restrictions contained in section 143.014, therefore, became applicable to the appointment of assistant chiefs to the extent the terms of the collective bargaining agreement did not specifically provide otherwise.

In this case, the collective bargaining agreement provided:

As vacancies occur in the rank of Assistant Chief, the Chief shall have the right to appoint to the position in accordance with this Section. Appointments to the rank of Assistant or Deputy Chief shall be by the Chief at his sole discretion, provided that the employee promoted is a classified, sworn member of the San Antonio Fire Department and occupies a rank of either Assistant Chief, District Chief, or Captain.

Reading the phrase “at his sole discretion” in context, we believe it unambiguously gives the Chief discretion over who to appoint, subject to the proviso immediately following, not when to appoint. The collective bargaining agreement as to when to appoint is silent; therefore, the Civil Service Act’s ninety day requirement prevails because the collective bargaining agreement did not specifically provide otherwise. Tex. Local Gov’t Code Ann. § 174.006(a) (Vernon 1999).

Ambiguous

The City’s second issue challenges the trial court’s alternative finding that the contract is ambiguous and that the evidence demonstrates that the parties never agreed that the fire chief would not have to abide by the 90 day appointment deadline.

When the interpretation of a contract is in issue, the trial court must first determine whether the provisions in question are ambiguous. Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983). The question of whether a contract is ambiguous is a question of law for the trial court’s determination. Id. A contract is ambiguous if it is reasonably susceptible to more than one meaning. Id. at 393.

In this case, the parties are not contending that the terms of the collective bargaining agreement are ambiguous. They simply disagree over its construction and interpretation. A disagreement over the meaning of a contract provision does not render the provision ambiguous. First City Nat’l Bank of Midland v. Concord Oil Co., 808 S.W.2d 133,136 (Tex.App. — El Paso 1991, no writ).

Although we agree with the City that the trial court erred in finding the contract ambiguous, the trial court’s error in making this alternative finding does not affect the judgment, because the trial court correctly applied the statute to the contract as written before making the alternative finding.

Conclusion

By approving the collective bargaining agreement, the San Antonio City Council approved an appointment procedure that permitted the Chief to make appointments to “the classification immediately below” the Chief. When the Deputy Chief position was eliminated, the “classification immediately below” Chief, to which the section 143.014 requirements became applicable, was Assistant Chief. Because the collective bargaining agreement was silent, the Civil Service Act’s requirement that such appointments be made within ninety days prevailed. The trial court’s judgment is affirmed.

      . City of San Antonio v. Scott, No. 04 96 00955 CV, 1998 WL 82690 (Tex.App. — San Antonio, Feb. 27, 1998, no pet.).

      . During oral argument, the City placed much emphasis on the following language in the collective bargaining agreement: "Except for the positions of Assistant or Deputy Chief, nothing in this Article shall be construed to require the City to create the rank or establish and fill the maximum number of positions authorized herein.” This sentence must be read in the context of the rest of the paragraph which provided: "Further, nothing in this Article shall be construed to limit any existing right of the City to create ranks and establish positions in accordance with State law and the City Charter.” In context, we believe that the sentence is unambiguously referring to the ‘‘creation” or to the "establishing and filling” of new positions so as to "create” or “establish and fill” the maximum number of authorized ranks or positions. Thus, this provision does not pertain to appointments to existing ranks or positions.