# Blackburn v. Blackburn > Tennessee Supreme Court · August 18, 1975 · 526 S.W.2d 463 URL: https://www.frixlaw.com/law-library/cases/9761989 ## Case - **Full name:** William Hodge BLACKBURN, Appellant, v. Mrs. Virginia Ware BLACKBURN, Appellee - **Court:** Tennessee Supreme Court - **Decided:** August 18, 1975 - **Citations:** 526 S.W.2d 463; 1975 Tenn. LEXIS 601 - **Precedential status:** Published - **Opinion:** Dissent by Henry - **Judges:** Cooper, Fones, Harbison, Henry, Brock - **Cited by:** 48 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9761989 ## How later opinions describe it (automated extraction) - finding under earlier law that “[t]he authority of the chancellor to order appellant to make child support payments is statutory and generally exists only during minority” - explaining that otherwise, a subsequent modification by the trial court would violate the Constitutional provision against impairment of contracts ## Opinion text HENRY, Justice (dissenting). In good conscience, I cannot lend my assent to the majority opinion. The issue before the Court is whether an agreement solemnly entered into by these parties, at the time of their divorce, providing for the support of the youngest child until she “reaches age twenty-one (21) ”, is enforceable. The parties so contracted; the trial judge so decreed. Having stated the issue, the matter may bs brought into closer focus by stating what is not the issue. The unquestioned right of the Court to modify a decree of child support, upon a showing of a change of circumstances, is not here involved. Nor are we directly concerned with the question of the merger of a property settlement agreement into a decree. It merges— but to a qualified extent. We are solely concerned with the right of the Court to terminate abruptly, and as a matter of law, and without an evidentiary basis or factual finding, a judicially sanc-tional contract. The majority opinion proceeds upon the assumption that the incorporation of the agreement into the decree results in its total and irrevocable obliteration, insofar as *467 the legal duty of child support is concerned, with the result that the Legal Responsibility Act of 1971 (T.C.A. § 1-313) operates, automatically and as a matter of law, to terminate an agreement made a decade earlier. With this conclusion I cannot agree. So far as I am able to determine the theory of merger and loss of contractual identity was introduced into Tennessee law by Osborne v. Osborne, 29 Tenn.App. 463 , 197 S.W.2d 234 (1946), wherein the Court after recognizing that the agreement merges into the decree, held that it: (t)hereby loses its contractual nature at least to the extent that the court has the power to modify the decree when changed circumstances so justify. 197 S.W.2d at 236 (Emphasis supplied) Some of the later cases have ignored this qualification, but not the latest pronouncement of this Court wherein our Chief Justice, in Penland v. Penland, 521 S.W.2d 222 (Tenn.1975) correctly noted: The reason for stripping the agreement of the parties of its contractual nature is the continuing statutory power of the Court to modify its terms when changed circumstances justify. (Emphasis supplied) 521 S.W.2d at 224 . This language, with which I am in full agreement, is quoted in the majority opinion, but has no relevance since we do not deal with change of circumstances, but with the obliteration of a contract as a matter of law. In Penland we held: (T)hat only that portion of a property settlement agreement between husband and wife dealing with the legal duty of child support, or alimony over which the court has continuing statutory power to modify, loses its contractual nature when merged into a decree for divorce. 521 S.W.2d at 224 . The language is summarized in the majority opinion and yet is in conflict with the rationale of that opinion. If a parent is under no legal duty to support his child when he has attained age eighteen (18), then it necessarily follows that so much of the agreement as would mandate support from age 18 to age 21 is “outside the scope of the legal duty”, and is enforceable. Penland stands as authority solely for the proposition that a contract between a husband and wife, in the throes of a divorce, under which the husband would provide a college education for his children is enforceable, irrespective of the adoption of the Legal Responsibility Act of 1971 and the decisions of this Court. — Only this and nothing more. The first case to be decided after the passage of the 1971 Act was Garey v. Garey, 482 S.W.2d 133 (Tenn.1972); however, this case is of no relevance, since the agreement provided for support until “each child reaches twenty-one (21) years of age or is otherwise emancipated”. Obviously, the 1971 Act resulted in the children being “otherwise emancipated” upon attainment of age 18. The Court’s opinion stressed this phraseology. The next case was Whitt v. Whitt, 490 S.W.2d 159 (Tenn.1973) wherein the agreement provided for final termination of support upon attainment of “majority”. Again the 1971 Act accelerated the majority of the child and the Court held that the obligation to support ended. As pointed out in Jones v. Jones, infra, much of Whitt was dicta. Moreover, my distinguished predecessor, Honorable Allison B. Humphreys, filed an eloquent dissent, in which he said, in part: I recognize that the opinion prepared for the Court by the Chief Justice is based upon acceptable principles of law, but I am obliged to dissent. I dissent, because, in my opinion, the result of the application of these otherwise acceptable principles is the unjust unsettling of family separation and divorce property arrangements arrived at in possible or probable contemplation of the father’s obligation to continue the support of his children at least through some of their college years. And that the opinion will relieve the father of this obligation by *468 retroactive application of the eighteen-year old statute, which is wrong. 490 S.W.2d at 161 . I concur with Mr. Justice Humphreys. Finally in Jones v. Jones, 503 S.W.2d 924 (Tenn.App.1973), the Court of Appeals, in a most excellent opinion by Judge Puryear, held that a contract executed before the 1971 Act, and providing for child support until age 22 or until each completes his, or her, education was valid and enforceable. As held by the Chancellor, this case is on all-fours with Jones . We denied certiorari in Jones . Viewed from any angle this husband and wife entered into a valid agreement under the terms of which he obligated and committed himself to support children until they reached age twenty-one (21). The wife • structured her finances accordingly. Ten years later the legislature, primarily in order to give persons eighteen years of age the right to vote and with no intent to destroy vested contractual commitments, passed an act reducing the age of majority to age eighteen (18). The husband reneged and repudiated his solemn covenant. This, I cannot conscientiously countenance. I cringe at the Court’s conclusion in this case. BROCK, J., concurs. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9761989. Public record. Not legal advice.