*1 ing” Farmington Country Club. Just
as there was Matthew insufficient evidence to estab- Clark EARLS agency lish an Sliney contract between Anderson, similarly we conclude that the Shirley agreement
record reflects no whereby Sli- Ann EARLS. ney would act as a finder for Anderson for Tennessee, Appeals Court of a fee. Even if there had been such an at Nashville. agreement, Sliney Ms. herself stated that 26, 1996, or about February “[0]n May 2000. Anderson your parties informed that he Opinion Denying Rehearing Petition for had no further interest in pursuing invest- 20, 2000. June golf ment in a course.” It evident from Sliney the record that Ms. did not “find” a to Appeal Permission Denied property that was for sale. The first two Supreme Court March attempts to purchase the club had failed fact, because the club was not for sale.
the owners testified that the club was not
for sale until they after had met with
Anderson who had convinced them to sell.
The record reveals that there was no
agreement between Sliney Ms. payment
Anderson for of any fee for “find-
ing” a property. To the contrary, viewing whole,
the record aas it reflects that Ms.
Sliney’s predicated involvement was on her
expectation of obtaining a commission as a
selling agent. She deposi- testified
tion: “I know I that was the selling you—
know, representing as a selling agent.”
The sale contemplated the Declaration materialize,
of Trust did right
to a commission part on the of the broker
failed. Summary judgment terminating right
the broker’s to a commission termi-
nates claim by Sliney.
Accordingly, reasons, foregoing order of trial court granting sum-
mary affirmed, judgment to defendants is
and the case is remanded to the trial court
for such further proceedings may
necessary. Costs of the appeal are as- against appellant,
sessed Sliney. Donna
ment and the lack of evidence that wife physically psychologically able to responsibilities shoulder the being parent. custodial The husband ap- *3 pealed. We have determined that the rec- ord ample contains evidence to declare parties these divorced in accordance 4—129(b) Tenn.Code Ann. (Supp. 36— 1999). We have also determined that the evidence support does not the trial court’s custody decision to award parties’ child to the wife and that the trial court’s award of spousal support to the wife should be modified.
Clark Matthews Shirley Earls and Ann Holman Earls met when they ap- were proximately years twenty old. Both worked, and Mr. also profes- Earls boxed sionally. July Their son was born in and they were married years two later in Thomas F. Bloom Robyn Ryan, and July 1993. While Ms. had Earls been Nashville, TN, for appellant, Clark Mat- previously, married this was Mr. Earls’ thew Earls. first marriage. The parties returned to Davies, Franklin, R.E. TN, Lee ap- Williamson County 1996 after Mr. Earls pellee, Shirley Ann Earls. failed to establish himself as a boxer in return, Vegas. Las Following their OPINION Earls an managed apartment complex, and KOCH, J., delivered opinion of the Mr. Earls part-time jobs held at Service COTTRELL, J., in which joined. Merchandise Company and United Parcel Service. appeal This involves a marriage irre-
trievably broken a catastrophic injury Ms. Earls suffered an unexpected and to the parties wife. The separated catastrophic injury after in March 1997 when an attempting cope with the wife’s condi- aneurism near her spine burst. She was tion for over year, one and the husband quadriplegic left a long, and faced a diffi- filed for an irreconcilable period differences di- cult regain of rehabilitation to even vorce in the Circuit Court partial for Williamson use of her arms legs and to County. agreed The wife parties that the provide even a minimal level of self-suffi- had irreconcilable differences but ciency. resisted Mr. Earls took a leave of absence the divorce because she desired to contin- from work in order to help Ms. Earls with being ue covered employ- the husband’s her rehabilitation. Mr. parents Earls’ also er-provided group medical insurance. The moved to Middle Tennessee for eleven trial court son, heard the evidence without months help daughter-in-law, their jury and declined to grandson. the husband a When Ms. Earls was re- divorce or parties to declare the divorced. leased from the rehabilitation center in The trial court also awarded June to a mobile moved child to the despite parties’ wife agree- home in Wartrace because Ms. Earls want- step-father.
ed be closer to her father. Mr. Earls with her mother and The agreed though significantly to move even parties agreed to an irreconcilable differ- and, 16,1998, his increased commute to work. July signed ences divorce agreement. marital dissolution The process rehabilitation was slow and agreement provided that the would reasons, par- difficult. For their own each joint custody but that child would ty discouraged depressed. became “primarily” live with Mr. Earls. It also Mr. Earls was he frustrated because be- provided that Ms. Earls would not re- lieved that Ms. was not pursuing Earls quired pay support child because Mr. could, as vigorously rehabilitation as she pay- receiving child’s SSI depressed Ms. Earls became and an- *4 stemming ments from Ms. Earls’ medical gry about the cruel blow had dealt fate condition. Unfortunately, party her. each became target other’s frustration and Mr. Earls filed the differ- irreconcilable anger. pressure Eventually, July ences on complaint divorce 1998. apart. They strain drove the parties be- longer Ms. him that Earls informed she no gan argue and to call frequently each agreed to the terms the marital dissolu- other Eventually, names. the tension in 5,1998, agreement, August tion and on she so that household became intense Mr. filed an answer and counterclaim. While Earls’ parents decided move back to she that the “irrecon- admitted had Cleveland, their home Tennessee rather “perma- cilable that differences” were fighting than endure constant between nent,” requested that trial she court their son and daughter-in-law. agreement declare the marital dissolution procured through void because had been
As passed, time became less undue influence and duress. She did not communicative and more distant. The sort, request any a divorce of but she pressure constant and tension extin- requested spousal tempo- and a support guished feelings their other. each rary restraining preventing view, order Mr. From Earls’ Mr. point Ms. Earls Earls care, removing employ- from her from his kept providing only her but he was basics, know, er-provided medical insurance and from providing you her “the here’s food; concealing dissipating marital assets. water; your here’s your your here’s Mr. Earls denied the undue influence and pill; things you here’s that need.” From claims, 14, 1998, view, duress and on December Mr. Ms. point Earls’ Earls contin- a complaint seeking filed an amended di- angry ued to be and resentful about her ground inappropriate vorce mari- injury stopped expressing any affec- later, days Ms. tal conduct. Three Earls appreciation tion for him or for his efforts inappropriate denied the marital conduct it, her. Mr. Earls assist As described allegation and bitter,” responded, accordance “very Ms. Earls was cold and 36-4-120(a) (Supp. with TenmCode Ann. “all I do to be could there her.” 1999), any part ill was that conduct after Approximately fifteen months Ms. part caused ill conduct on the of Mr. by Earls’ Earls injury, Mr. told her he Earls. lawyer had and that he wanted contacted March day occurred on disagree Ms. did not first trial divorce. Earls time, broken, was still relationship irretrievably By their Earls was July out sort but early requesting and in she moved of not support. Before handicapped apartment requesting spousal accessible was taken, proof informed they had Ms. Earls where moved went live the court that the parties agreed relationship had that Ms. Earls because Mr. Earls’ custody Mr. Earls should have of the child with “jeopardized Laura Moore the child but also insisted that she should have the in a moral sense.” The ordered Mr. right to reopen custody question when- pay per Earls to Ms. Earls month in $570 thought ever she sufficiently she was death, spousal until her support per $300. rehabilitated to take care of her son. The support, month in child as well as all her responded trial court to this announcement expenses accrued and future medical joint suggesting custody Mr. Finally, covered insurance. the court being parent.” the “residential When both enjoined permanently Mr. Earls from parties agreed to the suggestion, the trial “coming pro- around Laura Moore ... court announced: “Then that would be the protect marriage mote and relationship decree of the court with respect to the which exists and will exist in this case until custody issue.” custody With the issue I’m something reversed or new comes be- resolved, seemingly neither party present- [cjourt.” fore the appeal, On this ed the normally evidence associated with Earls takes issue with court’s custody disputes. divorced, refusal to declare the parties its 26, 1999,
The trial decision, reconvened on March spousal sup- its and child *5 parties and the presenting concluded orders, their port injunc- and with the blanket argument evidence and by noon. After against tion associating with Ms. Moore as deliberating hours, for approximately two long as he was married.
the trial court returned the bench to First,
deliver ruling. its the court an- I.
nounced that Mr. had proved by Whether the Parties Should be Divorced
a preponderance of the evidence that Ms. court, The trial perceiving itself as the engaged Earls had in “cruel and inhuman protector of the institution marriage,2 treatment.”1 of The court also concluded declined to parties that Ms. divorce the “right Earls’ ... two privacy es- First, tops grounds. this court going from far concluded that Mr. so as to finding any carry choice that Earls failed to proving she’s made with his burden of respect to body to be cruel and the existence of one of grounds inhu- Then, man treatment § towards Mr. divorce in Ann. Earls.” Tenn.Code 36-4-101 turning question Second, to the custody, (Supp.1999). the trial court con- court awarded sole custody of the child to cluded that the should not be di- Hamm, 122, 141-42, 1. The way trial court commented Tenn.App. "No José 30 204 (1947). has she done that as far as I’m concerned.” S.W.2d 121-22 mistakenly The trial court believes that the century ago, 2. Over a the courts believed that Assembly General revived this outmoded no- they duty uphold marriage were bound to as tion in 1996 when it enacted Tenn.Code Ann. “the most sacred of domestic relations.” (1996). § passed 36-3-113 This statute was DeArmond, 40, 44, DeArmond v. 92 Tenn. required being to shield Tennessee from (1892). long S.W. This view has recognize same-gender marriages performed replaced by since been the less and moralistic Accordingly, in other states. it extolls hetero- marriage more human view that when a broken, marriage building sexual as “fundamental irretrievably society large both short, society.” stops block of our It far themselves have "no interest in however, endorsing perpetuating good the notion that either a status out of which no may can come individual or societal interests will be ad- and from which harm result.” 525, 534, Lingner Lingner, by condemning persons 165 Tenn. vanced two to love- (1933); see also Hamm v. less marital unions. (1940). days, In those the courts Earls would “be more because Ms. vorced cruelty and “cold-blooded required acts of reconciliation” once pursuing aggressive toward part of husbands barbarity, on the was dis- complaint Mr. Earls’ divorce in order to wives”4 a dutiful and innocent reasoning demonstrates This missed. marriage from the institution of protect the di- misunderstanding of fundamental her- “permits a wife who complaints misinterpretation of and a vorce statutes very unhappy and dissatis- self to become evidence. by magnifying the her condition fied with A. husband, of her and indiscretions faults in- fifty years, imaginary wrongs, brooding For at least one hundred over to that empow feeling opposition have been in a dulging the courts of this state be- properly en control spouse authority divorces when which ered him, family.” Shell inhuman treatment or head of the longs in “cruel and as gages Shell, renders at 722. spouse 34 Tenn. conduct towards Tenn. improper.” cohabitation unsafe long since days Those chauvinistic 36-4-101(11); of Ten §Ann. Code Code them court has marked and this passed, 2449(1) (1858). courts’ view nessee First, in two occasions. on at least passing amounted to of conduct that type held that con Eastern Section changed treatment has cruel and inhuman or unen longer dangerous must be duct no time, long type years. For over inhuman to cruel and to amount durable cruel and that was considered of treatment so, granted the court doing treatment. a divorce con enough inhuman to warrant a suicidal wife a divorce from husband willful, causing of persistent sisted of “the which “any series of misconduct because *6 in realiza whether unnecessary suffering, unacceptable cohabitation makes continued body or tion or whether apprehension, statutory require is sufficient to meet mind, way as to render cohabita in such a White, 3, Eq. No. v. Carroll ment.” White dangerous and unendurable.” Gard tion 101253, (Tenn.Ct.App. *1 Oct. at 1988 WL Gardner, 410, 412, 104 Tenn. 58 ner v. 1988) (No 11 Tenn.R.App.P. application 3. (1900) other 342, overruled on 343 S.W. filed). later, after General years Four Jackson, 186 Tenn. v. grounds, Jackson inhuman and changed the “cruel Assembly (1948); Rus 335 210 S.W.2d mari “inappropriate ground to treatment” (1926). Russell, 232, 245 Tenn.App. sell v. conduct,”5 of this Section tal the Western White, court, upheld a following v. White limited the conduct The courts further who had to a husband granted divorce on the support a divorce that would during long a illness. spouse for cared his inhuman treatment of cruel and grounds wife’s conduct that The court found acerbity of that by “[m]ere out pointing “unacceptable” and illness was during the rude lan- reproaches, temper, occasional anguish “mental wife, the husband had caused toward guage by the husband Brown, No. Brown v. distress.” none is where of violence even threats 02A01-9108-CV-00168, 1992 WL for ground[s] constitute attempted,3 do not 1992) (No Jan.16, Tenn. (Tenn.Ct.App. *3 statutes.” Watson under our filed). 28, 34, R.App.P. application Watson, Tenn.App. Sneed) Shell, (2 728- Tenn. consid- Shell would be
3.Today, this sort of conduct (1855). Tenn.Code abuse. See to be domestic ered 36-3-601(1) (Supp.1999). §Ann. 36-4-101(11). § Tenn.Code Ann. 5. See par- The trial or both of the July this case brushed 1998 either repeated ties in a course of con- engaged Brown v. Brown aside because it did not that continued cohabitation un- agree with the rationale of the decision.6 duct made is rendered less acceptable. inquiry This colleagues. We choose to side with our It already have parties difficult because is not the but trial Appeals Court have deter- they decided for misperceives court who Tennessee’s cur themselves — ac- longer mined that cohabitation is public policy regarding rent divorces based ceptable they to them because have been ground on the of inappropriate marital living July since evi- apart 1998. The Upon proof any ground conduct. clearly dence in this case demonstrates 36-4-101, § divorce in in Tenn.Code Ann. engaged in that both conduct conduct, cluding inappropriate marital relationship. in a marital inappropriate Assembly empowered General overwhelmingly Accordingly, evidence “grant party courts to divorce to the who preponderates against the trial court’s or, was less at fault if either or both “nothing conclusions that Ms. Earls divorce, parties are entitled to a declare did ... caused the of the mar- break-up divorced, to be rather than riage” “waiting Ms. Earls was awarding party divorce to either alone.” away” 129(b) go pursu- this lawsuit to before Tenn.Code Ann. (Supp. 36 - 1999). aggressively. a reconciliation more Accordingly, a Tennessee court should a divorce from the bonds of question hinge The divorce does not matrimony whenever there is evidence of catastrophi- the fact that Ms. Earls was continued misconduct one or both cally injured in Everyone March 1997. spouses that makes continued cohabitation involved with this recognizes case unacceptable. neither nor Ms. Earls Mr. Earls is re- sponsible for this misfortune. It does not
B. hinge upon even Ms. Earls’ efforts to re- It remains to be decided whether progress habilitate herself or the of her proved Mr. Earls has preponderance despite emphasis rehabilitation these of the evidence that between March 1997 matters received court.7 The *7 explained 6. The trial eventually that "I do not her. The available to trial court agree Appeals with what the Court of said in “estopped” decided that it was to consider case, that Appeals because what the Court of infringe facts do these because to so would did without the sanction the of Tennessee right privacy by protected Ms. Earls’ of the Supreme changed inappro- Court what all the Constitution of Tennessee. While the trial priate marital conduct cruel and inhu- and/or flawed, analysis court’s constitutional its years just man treatment had cases said for though Even conclusion is correct. consider- say cohabiting acceptable. Any is not ing this evidence does not have constitutional series of misconduct flies in the face of all the overtones, progress the of Ms. Earls’ rehabili- prior law.” grounds tation is irrelevant to the issue of for except regard divorce to the conduct it parties length 7. Both testified at some about may parties engage have caused the in. Initially, Ms. Earls’ rehabilitation. Ms. Earls Thus, engage inappropri- Ms. Earls did not everything insisted that she did her health- do, seeking ate marital conduct to rehabili- not givers care told her but later she con- However, aggressively. tate more stopped pro- herself ceded she her rehabilitation time, gram period parties’ injury for over and that she declined to both frustrations her apparatuses, use certain and that she did not may have caused either both rehabilitation or perform her home exercises. Mr. Earls also ways appro- of them to act in that were not aggressively testified did that Ms. Earls not priate couples. for married pursue self-help the activities and devices in deter played fits have a role decision the existence should not regarding di depends upon the grounds mining parties whether the should each parties’ conduct toward other. courts take the the should vorced. While consideration, into see Tur parties’ desires Ms. had no control the While Earls over 232, Bell, 249, Tenn. 279 S.W.2d ner injured, she have fact that did she 71, (1955); Lingner Lingner, 165 treated Earls. control over how she Mr. 752; Herchen Tenn. at 56 S.W.2d at might it is how While understandable she Herchenroeder, Tenn.App. roeder v. con- depressed be resentful and about her (1945), they dition, she could have refrained from tak- called ultimately must render a decision Mr. anger out on Earls or from the law and the Under the facts. objects from throwing eventually or be- case, concern re facts of this Ms. Earls’ coming expressions cold without and bitter should her future medical care garding gratitude of affection or for his efforts. the token, the same Mr. Earls have have been addressed the division By could spousal support and anger his in check. marital estate and kept frustration the name-call- He too could have avoided have the decision should not influenced ing, arguments, and the attitude that whether to divorce. trying enough Earls hard Ms. was not case When the trial court heard this passed, time rehabilitate herself. As had parties’ relationship March parties’ confronta- grew, rancor their and affection disintegrated and love became more than arguments tions They had been extinguished. had been infrequent isolated incidents. no effort separated for ten months with parties’ disagreements escalated to relationship. intention to rekindle their parents point where Mr. Earls’ moved changed These circumstances had they longer were
back home because lawyers argued case before when their atmosphere in the to tolerate the able Accordingly, trial court court. Thereafter, Earls’ house. rate of en- should found that both relationship disintegration parties’ of con- gaged inappropriate in an course Earls’ accelerated as the burden Ms. con- many duct months that rendered over grew heavier and their medical condition tinued as husband and wife cohabitation support external diminished. remand, trial court unacceptable. On courts, reached By the the case time declaring order shall enter an Mr. had con- both Earls and Tenn.Code in accordance with divorced irrecon- ceded their differences were 4—129(b).8 §Ann. 36— Mr. di- cilable. Ms. Earls resisted Earls’ a divorce of her vorce and did not seek II. Earls, own, not out affection for but *8 Custody Child losing to avoid she desired because initially trial court acceded The Earls’ provided Mr. health insurance custody ar- joint parties’ agreed-upon group Mr. Earls’ medical bene- employer. that Mr. evidently with court's conclusion piqued at the the trial 8. The court was "fault.” But spat at "fault” exceeds Earls' testimony Mr. Earls his wife Earls’ that occasion, point, conceding the trial court pressured even that he had her into one parties divorced agreement, declared the could still have signing marital dissolution 36-4-129(b) §Ann. because under Tenn.Code that he kissed Ms. Moore on the had par- clearly demonstrates that both Accordingly, the record the trial court stated mouth. disintegration ties to the eventual contributed that it to Ms. would marriage. seeking quibble We do of their she one. had been
885 custody carefully weigh with numerous consid rangement primary physical courts to Nichols, However, 792 being awarded to Mr. Earls. erations. See Nichols v. 713, (Tenn.1990); Rogero v. changed solely the court S.W.2d 716 its mind because Pitt, 109, 112(Tenn.1988); Bah it 759 S.W.2d “jeopardized decided that the child was Bah, 663, v. 668 S.W.2d 666 (Tenn.Ct.App. in the moral sense” Earls’ because Mr. 1983); also Tenn.Code Ann. 36-6- see relationship taking with Ms. Moore. Even (1996). 106 into account the trial court’s invocation of parties’ credibility, totality comparative analysis The fitness is not evidence, objectively, considered indicates parent intended to ascertain which relationship has imbued this perfection been is unat perfect because as
with significance more than it deserves. in parenting tainable is life’s other Accordingly, we reverse the trial court’s Rice, activities. Rice v. 983 See S.W.2d awarding custody decision to Ms. Earls. (Tenn. 680, Ct.App.1998). 682-83 Courts that parents
understand have their own A. unique virtues and vices. See v. Gaskill Gaskill, 626, (Tenn.Ct.App. 936 S.W.2d 630 involving custody Decisions and visita 1996). Accordingly, Tennessee’s courts do tion among are the most important deci not expect parents prove they are sions a divorce case. The courts must exemplary or that the parent other is com custody devise arrangements promote Instead, pletely carefully unfit. con they development of the children’s relation sider the conduct and circumstances of the ship parents with both and interfere as parents to determine which of the available possible post-divorce little as family comparatively custodians is more fit decision-making. Aaby See v. Strange, permanent custody of the child. See 623, (Tenn.1996); 924 S.W.2d Adel Julian, Julian v. No. M1997-00236-COA- sperger 482, v. Adelsperger, 970 S.W.2d R3-CV, 343817, 2000 WL *6 (Tenn.Ct.App. 484 (Tenn.Ct.App.1997). These decisions 2000) (No Apr. Tenn.R.App.P. appli are not intended to punish reward or to filed). cation parents, Turner, see Turner v. 919 S.W.2d (Tenn.Ct.App.1995); Barnhill v. stability important Since child’s Barnhill, (Tenn.Ct. 826 S.W.2d well-being, emphasized the courts have and, fact, App.1991), interests importance continuity placement parents secondary are to those of the chil custody and Taylor visitation cases. See Lentz, dren. Lentz v. See 717 S.W.2d 328; Taylor, 849 Contreras (Tenn.1986). goal of these deci Ward, (Tenn.Ct.App. 831 S.W.2d sions is to promote the children’s best 1991). however, Continuity, does not by placing interests them an environ trump all other Depend considerations. ment that will best physical serve their facts, parent on the who has been a Luke, and emotional needs. See Luke v. primary caregiver child’s may not neces (Tenn.1983). 219, 221 sarily comparatively more fit than the parent permanent custody other to have No hard and fast rules exist for deter- the child. mining which and visitation ar- rangement Custody will best serve a child’s needs. and visitation determinations *9 factors, Taylor, v. Taylor hinge including See 849 S.W.2d 327 often on subtle (Tenn.1993); Dantzler, parents’ credibility during Dantzler v. demeanor and (Tenn.Ct.App.1983). proceedings S.W.2d The the divorce themselves. Ac- inquiry factually requires cordingly, appellate driven and courts are reluctant to They
second-guess long a trial court’s Tri worked hours and faced decisions. both They al courts must be able to exercise broad significant pressures. financial de- matters, but they discretion these still pooling cided that their efforts would be the proof must base their decisions on and Mr. realized mutually beneficial. Earls upon appropriate application help provide babysit- that Moore could Ms. K, of law. D applicable principles Thus, See ting he was when working. when (Tenn.Ct.App.1995). him, his not Moore mother could assist Ms. Thus, we review decisions de these novo left apartment could to his when he come presumption the record with a that early morning for work and could trial court’s of fact findings are correct morning oversee his son’s routine before preponderates unless the evidence other the child left for school. Nichols,
wise. See Nichols 792 S.W.2d circumstances caused Mr. Earls These 716; Doles, Doles v. close and to Ms. Moore become (Tenn.Ct.App.1992). They conceded depend upon each other. that had kissed on several occasions they B. Ms. apartment.9 as Ms. Moore left already The had determined candidly “wasn’t the Moore stated that it child’s themselves where their best inter- right thing going to be on” and insisted lay. Ms. They ests knew that Earls could that never been in Mr. Earls’ bed she had own, not care for the child on her and so had sex him. also had never with She they agreed they joint that should have not explained relationship that their would being with Mr. Earls the custodial until Earls was advance further after Mr. They parent. agreed upon also liberal vis- Ms. Moore disclosed that she divorced. They itation Ms. Earls. understood had with her son on Mr. Earls’ couch slept require that this would Mr. arrangement had car on several occasions when she he Earls obtain because was con- help trouble, insisted she had not but she tinuing jobs. to hold down two Mr. Mr. Earls’ and that apartment moved into received this assistance from mother his there. keep any things she did not of her Moore, and from Ms. a woman introduced acquaintance following a mutual a court found to be trial Ms. Moore parties’ separation. Ms. Moore worked as “fairly very witness. credible honest” a waitress ’N Shake Steak restaurant Despite evidence the absence other age parties’ and had son the same in the that Ms. and her son record Moore son. Ms. Earls was aware Ms. Moore Earls, had moved with Mr. son and taking apparently care of her was “liv- court concluded Ms. Moore object. not did court’s ing” Mr. Earls. In the trial mind, therefore, the relationship Moore Mr. Earls were between
Ms. candid They pro- would have relationship. good about their had a Earls and Moore grounds for they in that both vided Ms. Earls with sufficient deal common were sought The trial a divorce had she one.10 trying raise children their own. judge 10. far as I testimony prompted This the trial court to The trial court stated: "As y'all's say had to rela- what Ms. Moore about "Why people that are not mar- comment: do give cause tionship, would this court [it] each each ried to other kiss other? I don’t Earls, divorce, grant Mrs. that means ahead, go you want understand that. But if going to one but she doesn't want and I’m position." to take that asked for a divorce for her. She hasn’t
887 provided in her circumstances has occurred court also concluded that child’s for disregarding parties’ agreed comparatively basis and that she is more fit than upon custody arrangement that it had al- par- Mr. Earls to be child’s custodial ready approved, entering quite and for ent.13 enjoin-
unprecedented permanently order
ing coming III. Mr. Earls from around Ms. long
Moore as as he is married.11 Spousal Support The record does not contain one scintilla Even the trial though court declined of evidence that Mr. Earls’ relationship divorced, parties’ declare the it ordered Moore, might with Ms. whatever in truth it Earls, pay spousal Mr. Earls to Ms. be, has or will have an impact adverse support, per month until her death. $570 parties’ child. Considering record The court pay also directed Mr. Earls to objectively, Mr. relationship Earls’ with all of Ms. accumulated medical Earls’ ex- Moore, necessity, born out of simply penses not covered insurance and to be ability does not reflect on his to be his responsible for all her future uncovered parent. son’s custodial being There expenses. obligations, medical These com- substantial material evidence in the bined with Mr. Earls’ other court-ordered require record to the trial court to second- obligations, far exceed his income. Ac- guess parties’ custody own and visita- cordingly, considering after the factors arrangement, tion we hold that the court 5—101(d)(1) (Supp. Tenn.Code Ann. 36— erred by approving custody ar- 1999), we have determined that the trial rangement originally proposed by par- spousal support court’s order must be Accordingly, remand, ties. the trial modified. court shall enter an granting order
parties joint custody of pri- their son with A.
mary physical custody in Mr. Earls.12 Should Ms. Earls change desire to There are no hard and fast rules for custody arrangement, she will spousal have the decisions. Crain v. support See proving Crain, burden of change that material (Tenn.Ct.App. 233 one, arrangement and she doesn't want one and the law whenever she decides that her require doesn’t me to.” physical improved enough condition has parties’ enable her to take care of the child. long 11. The trial court stated: “As as these However, improvement an in Ms. Earls’ con people morally [the Earls] remain married it not, law, changed dition is as a matter of jeopardizes exposed this child to be to Ms. reopening circumstance that will warrant overnight Moore with Mr. Earls in what is custody. Changed issue circumstances clearly perceived at least on the surface to be must involve the child's circumstances rather point at this in time to be a situa- romantic parent. than those of the non-custodial See good tion. That’s not for ... to see [the child] White, White v. No. M1999-00005-COA-R3- simply addressing possi- that.” Rather than CV, (Tenn.Ct.App. WL at *3 visits, overnight ble romantic the court barred 10, 1999) (No Tenn.R.App.P. applica Dec. Mr. all Earls from contact with Ms. Moore. Grim, filed); tion McCain v. No. 01A01-9711- order, Following entry CH-00634, (Tenn.Ct. WL at *2 Earls, parent, as the custodial will be entitled 15, 1999) (No App. Tenn.R.App.P. Oct. payments to receive the SSI for his son result- filed); application Ragains, Gorski v. No. disability. from Ms. Earls' 01A01-9710-GS-00597, WL (No 1999) (Tenn.Ct.App. July *4-5 Tenn. appears agreed 13. The trial court to have filed). R.App.P. application argument per- Ms. Earls’ that she should be mitted to seek a modification in the *11 888 36-5-101(d)(1)(K), Stone, 607, §
1996); Ann. Tenn.App. 56 TenmCode Stone v. (1966). 388, pu are not intended to be 615-16, these decisions 409 S.W.2d 392-93 Duncan, v. 686 to deter nitive. See Duncan Trial courts have broad discretion 568, (Tenn.Ct.App.1984); 571 support mine whether is needed S.W.2d spousal 580, nature, amount, McClung, Tenn.App. 29 and, so, McClung v. if its and duration. (1946). 584, 820, pur 822 The 945 S.W.2d 198 S.W.2d Garfinkel, v. See Garfinkel aid the disad 744, pose spousal support is to (Tenn.Ct.App.1996); Jones v. 748 and remain Jones, 349, vantaged spouse to become (Tenn.Ct.App. 784 S.W.2d 352 and, 1989). rehabili when economic generally are dis self-sufficient Appellate courts feasible, mitigate the harsh a trial court’s tation is not second-guess inclined to Shackle economic realities of divorce. See unless it is not spousal support decision 598, 601 Shackleford, v. 611 S.W.2d contrary or is supported by the evidence ford divorced cou (Tenn.Ct.App.1980). While applica reflected in the public policies Brown, income or assets ples 913 often lack sufficient statutes. Brown v. ble See 163, pre- of them to retain their In to enable both (Tenn.Ct.App.1994); S.W.2d 169 262, v. living, standard of see Brown 721 264 divorce gram Ingram, v. S.W.2d 169, Brown, obligor at 913 S.W.2d (Tenn.Ct.App.1986). “clos may provide able to some spouse 36-5-101(d)(1) (Supp. § Tenn.Code Ann. disadvantaged ing money” to enable the 1999) temporary, preference reflects a fi or her former spouse approach his opposed spousal support, rehabilitative Aaron, Aaron v. nancial condition. See Herrera v. long-term support. See 909 S.W.2d (Tenn.Ct. 379, Herrera, 944 S.W.2d 387 Moore, hinge v. 929 S.W.2d decisions App.1996); Spousal support Wilson 367, purpose require The (Tenn.Ct.App.1996). unique 375 facts of the case balancing is to enable of the factors Tenn. support of rehabilitative careful 36-5-101(d)(1). acquire additional See Haw disadvantaged spouse Ann. Code 622, skills, education, Hawkins, training that will 625 job kins v. 883 S.W.2d Loyd, 860 Loyd him or her to be more self-suffi v. (Tenn.Ct.App.1994); enable Smith, 409, (Tenn.Ct.App.1993). 912 S.W.2d 412 cient. See Smith v. S.W.2d ease, impor virtually every the two most (Tenn.Ct.App.1995); Cranford need of (Tenn.Ct.App. are the demonstrated Cranford, 772 S.W.2d tant factors 1989). spousal obligor and the purpose long-term disadvantaged spouse The hand, Varley v. Var provide spouse’s ability pay. other is to See support, (Tenn.Ct.App. disadvantaged spouse who is support ley, to a 934 S.W.2d Crain, 1996); of self- at 234. degree achieve some 925 S.W.2d unable to Crain Loria, 952 Loria v. sufficiency. See (Tenn.Ct.App.1997). B. sup for rehabilitative statutory preference rela marriage We have here other forms entirely displace
port does tively short duration. While warrant when the facts spousal support wed, by hold made ends meet they were open-ended support. more long term or Fol them. jobs three between ing down Aaron, Aaron v. 909 S.W.2d See parties’ and the Ms. Earls’ illness lowing Isbell, (Tenn.1995); Isbell v. quickly combined needs separation, their (Tenn.1991). 735, 739 available to the resources outstripped easy, are Support decisions seldom them. fault is a relevant consider- though Even more diffi- they certainly are rendered see setting spousal support, ation when legitimate pay support cult when there are needs and Mr. Earls should Ms. Earls *12 per April insufficient month from resources. the amount of $450 through March 2006. Neither paid per Mr. Earls Ms. Earls $211 support of this the amount nor duration temporary support prior month in to the have shall be modified or extended. We trial, At pro- divorce decree. Mr. Earls also determined that Mr. Earls should con- posed to continue this while Ms. support; monthly premium for pay tinue $144 suggested Earls that she should be re- coverage Ms. insurance as Earls’ COBRA sponsible for her accrued and future medi- long as it is available and that Mr. Earls and, return, cal expenses that Mr. Earls monthly against shall receive a credit his pay should her per only month. Not $570 as support obligation payments for these did the trial court pay order Mr. Earls to long Finally, as makes them. we have he per spousal month in support, but it $570 Mr. determined that Earls should shoulder required also him responsible to be for Ms. for responsibility paying balance Earls’ future uncovered expenses medical expenses Ms. Earls’ uncovered medical $14,878 plus in accrued medical expenses.14 that had accrued at the the trial time of Beyond doubt Ms. Earls needs financial $10,578.15 remand, not to exceed On support. injury Her has left complete- support trial court shall enter a order con- disabled, ly prospects signifi- and the In opinion. sistent with this addition to cant rehabilitation are remote. Her establishing spousal support Mr. Earls’ ob- monthly government disability checks ligation prospectively, give the order shall only amount of are her current $648 any spousal support Earls credit for source of income other than the assistance payments April made since 1999 that she receives from her and step- mother support exceed the amount of the estab- time, father. At the same Mr. Earls’ net opinion. lished monthly $1,640 approximately —is income— light modest. of our modification of the IV. decision, court’s Mr. Earls required will be to support himself and the Attorney’s The AwaRD of Fees parties’s child on this income plus the $323 Mr. Earls also takes issue with the monthly payments which SSI must be require pay trial court’s decision to him to used for the child. $4,000 defray Ms. Earls an additional legal
We have determined that Mr. her He that he is expenses. asserts pay spousal should short-term sup pay expenses. unable to these Ms. Earls port. length Based on the of the mar responds that she has no assets from needs, riage, Ms. Earls’ ability expenses Mr. Earls’ which she can and that pay these to pay, as well as the fact that he will gener her condition renders her unable to primary assume responsibility raising requests ate additional income. She also child, parties’ we pay have determined that this court to order Mr. Earls to expenses being repaid 14. The accrued were these use funds reduce the amount of these monthly eighteen $650 installments of over unpaid expenses. We affirm the trial court's months. disposition paid By funds into court. applying these funds to the accrued medical $14,878 expenses 15. These at amounted to liability expenses, Mr. Earls’ of the accrued judgment, the time of trial. In its final capped unpaid expenses but will be medical $4,300 trial court awarded Ms. Earls the $10,578. paid had been into court and directed her to entry the mandate in this case. We legal expenses she has incurred as a result that Mr. Earls also determined appeal. of this required pay legal not be should action, In a divorce an award of attor expenses Earls has incurred a re- spousal ney’s fees is treated as additional appeal. sult of this Smith, 912 support. See Smith v. S.W.2d (Tenn.Ct.App.1995); Gilliam V. Gilliam, (Tenn.Ct.App.
1988). attorney’s award The decision to Mr. with Ms. Earls’ Association Moore lies within sound discretion of the fees In requires final issue discussion. One Aaron, v. judge, trial see Aaron 909 Mr. light evidence Earls’ regarding 411; Brown, at Brown v. 913 S.W.2d Moore, with relationship Ms. 170, at we will not interfere S.W.2d and enjoined Mr. permanently Earls judge’s with the trial decision unless long Moore as “coming from around” Ms. preponderates against it. See evidence court’s expla- married. The trial he is Batson, 849, v. 862 Batson 769 S.W.2d decision is that astonishing nation for this (Tenn.Ct.App.1988). A is entitled to party it in the it not believe “to be best did attorney’s fees he or she lacks suffi when you Mr. marriage of this Earls interest legal funds to or her ex pay cient his relationship this with to Ms. continue required deplete to penses it, or would be injunc- Moore.” As court saw assets to so. See Brown v. other do “promote protect tion and mar- would Brown, 170; 913 at Kincaid v. S.W.2d and riage relationship which exists will (Tenn.Ct. Kincaid, 140, 144 912 S.W.2d exist in this case until I am reversed or App.1995). the court.” something new comes before stayed At request, Mr. Earls’ we this or- The record little room for doubt leaves appeal pending. der while this currently Ms. Earls lacks the re- may appropriately consider a pay lawyer to that her Courts sources her non-marital sexual activ barely parent’s income all sources will custodial future from custody ities context of a decision. equally It is clear in the cover necessities. Lance, v. No. 01A01-9801-CV- existing Mr. Earls few assets See Lance has (Tenn.Ct. 748283, at *3 income when measured 1998 WL that his is modest (No 1998) However, Tenn.R.App.P. 11 App. against obligations. his future Oct. filed); Barnhill, v. application Mr. Earls’ to earn and to Barnhill ability income However, we superior Ms. 826 at 453. have accumulate is far S.W.2d assets that cohabitation repeatedly pointed out Accordingly, Earls’. we no basis provide necessarily does second-guess the trial court’s decision alone $4,000 changing when there pay grounds Mr. require Earls to However, adversely or will has legal expenses. proof we have for her Varley Varley, v. to affect the children. See appropriate that it would be determined 666-67; election, v. Earls, at Sutherland pay at his permit (Tenn.Ct. Sutherland, 283, 286 sum or in install- lump this amount young, im- App.1991).16 order to shield over two from date of the years ments Williams, 16, 1987) (No (Tenn.Ct.App. Tenn. *1 Dec. See also No. 01A01- Williams filed); 9610-CV-00468, application Smith v. R.App.P. 11 WL at *6-7 86-43-II, 23, 1997) Smith, (No *2 WL at (Tenn.Ct.App. May No. Tenn. 9, 1986) (No filed); (Tenn.Ct.App. July Tenn. R.App.P. application Salimbene filed) Salimbene, 87-194-II, (reversing de- R.App.P. application No. 1987 WL to the trial court di- of mand the case children from these sorts pressionable activities, enjoin an consistent with frequently courts rections to enter order (1) di- engaging declaring from in intimate sexual parents opinion present. while the children are Ann. activities with Tenn.Code vorced in accordance case, (2) injunction in this 36-4-129(b), The trial court’s awarding however, customary reme- far exceeds the child with Mr. Earls joint custody of their (3) conduct. dies for non-marital sexual physical custody, receiving primary pay Mr. Earls to Ms. Earls directing $450 undertaken to party appeal No in accordance with Sec- spousal support portion defend this of the final order. We We tax the costs opinion. tion III of this surprised are not because the order marks Matthew equal proportions Clark first time that a trial court has en- surety Shirley Ann Earls and his joined party associating from with anoth- execution, necessary, if Earls for which person er even when the children are not may issue. *14 order cannot for three present. The stand First, record contains abso- reasons. COTTRELL, J., concurring opin- filed a lutely no that Mr. proof relationship Earls’ ion. Moore, is,
with Ms.
has ad-
whatever
CAIN, J.,
dissenting opinion.
filed a
versely
likely
adversely
affected or is
Second,
parties’
affect the
child.
the order
Judge
concurring.
COTTRELL
infringes
constitutionally
on Mr. Earls’
troubling
tragic
This case involves a
protected right
persons
to associate with
situation, but, my
in
not
opinion,
fact
does
Third,
choosing.
of his own
the rationale
any
involve
fundamental
issue of law or
injunction
for the
court’s notion
—the
applying
in
the facts
policy. Our task lies
if
parties
would reunite
principles.
pri-
herein
established
longer
out of the
picture
Moore was
—is
appeal
in this
is not whether
mary issue
relevant because we have directed the trial
true no-fault di-
recognizes
Tennessee law
court,
remand,
to enter an order declar-
question
to that
is
vorce. The answer
Thus,
parties
divorced.
as a mat-
no,
in two
not
clearly
except
situations
law,
a
longer marriage
ter of
there is no
Similarly,
in
case.
this case is
present
preserved. Accordingly,
be
the trial
preserving
courts’ role in
not about the
injunction preventing
court’s
Mr. Earls
marriage.
parties
These
do
sanctity of
associating
from
with Ms. Moore while he
want a marital relation-
have and do not
is married is dissolved.
joined
Judge
I
in
Koch’s con-
ship.
herein,
regarding
clusions
the issues raised
VI.
separately
write
on two issues.
but
summary,
portions
we reverse the
in
April
judgment
1999 final
which
I. Divorce
(1)
the trial court
declined to divorce
(2)
is whether the evi-
parties’
awarded
of the
The issue before us
parties,
in
demonstrates sufficient
Earls and ordered Mr. Earls
dence
this case
child to Ms.
(3)
marital conduct to authorize
support,
inappropriate
child
directed Mr. Earls
pay
Judge
agree
divorce.
I
permanent
month in
alimo-
a
pay
per
$570
36-4-129(b)
(4)
§Ann.
to refrain Koch that Tenn.Code
ny, and
ordered
a court to declare
(Supp.1999)
re-
authorizes
associating
from
with Ms. Moore. We
during the
with four different men
from the custo-
relations
cision to remove two children
divorce).
years following the
having
three
dy
a mother who admitted to
sexual
first
divorced,
of the
unique
and a
combination
regardless
promises
of which
parties
sensitivities,
fault,
expectations,
individual
when there is
party may be more
involved, it is
parties
of the
personalities
either
both
proof that would entitle
judges may
differ
understandable
divorce, i.e.,
of one of the
parties
proof
to a
un-
whether
conduct has caused
particular
statutory grounds
divorce.
individ-
necessary suffering
particular
to a
ma
question upon which the
This is the
marital rela-
particular
rendered a
ual and
the rec
jority
diverge-whether
and dissent
My position is
tionship unsustainable.
proof
inappropriate
ord includes
marital
his
judge
need not substitute
simply that
Judge
Koch’s
conduct. As detailed
parties
for that of the
opinion
or her
opinion,
type
the courts’ view of
here,
where,
both
have deter-
inhu
conduct which constitutes cruel and
other
conduct has
spouse’s
mined that the
evolved,
marriage
has
man treatment
un-
improper,
made continued cohabitation
marriage and the
society’s
as has
view of
endurable,
unacceptable to
intolerable or
there
marriage.
individual’s role
While
clear,
The evidence herein
themselves.
unanimity
be
lack of
appears to
some
argument unequivo-
and statements at oral
words to
appellate
specific
decisions on
intention,
cal,
party
that neither
mari
defining inappropriate
applied
to live with the other or
hope, or desire
conduct,
question
tal
the basic
remains
relation-
re-establish or maintain marital
either or
en
whether
both
and statements
ship.
parties’
Both
actions
(1)
gaged in a course of conduct which
*15
undisputed
fact that
their
establish
to the
pain, anguish
caused
or distress
each other has
prior conduct
toward
(2)
continued
party
other
and
rendered
and distress such that each
pain
caused
“unendurable,”
“improper,”
cohabitation
is
that cohabitation
party has determined
Tenn.
“unacceptable.”
or
See
“intolerable”
unendurable,
unacceptable.
improper,
36-4-101(11)
§
(Supp.1999);
Ann.
Code
Therefore, I would find that the evidence
410, 412,
Gardner,
Tenn.
v.
104
Gardner
the trial court’s
preponderates
against
(1900);
Garvey,
Garvey
343
58 S.W.
marital conduct
finding
inappropriate
that
291, 299-300, 203 S.W.2d
Tenn.App.
proved.
was not
White,
(1946);
White v.
Carrol
par-
that
agree
Judge
I
with
Koch
both
(Tenn.Ct.
3, 1988
at *1
Eq. No.
WL 101253
in
which contributed
engaged
ties
conduct
(no
1988)
App.
Tenn.R.App.P.
Oct.
marriage.
I
of their
to the deterioration
Brown,
filed);
No.
application
Brown
Judge
position
with
disagree
Cain’s
02A01-9108-CV-00168,
at
Judge pursuant Cain would leave in effect the to Tenn.R.Civ.P. 15.1 Since award, trigger current situation which resulted from would an initial *16 agreement by analysis. parties. comparative the The result would use a fitness majority opinion, would no initial mother custody be award of inci- Under the the dent to the seek a modification of the Judge divorce. Koch would would need to ap- custody legal hold that the trial under the standards court erred not award proving custody proceedings.2 Judge the to such arrangement proposed applicable rul- by majority’s the that the approved by the court Cain is concerned Thus, the beginning ing deprive at the of the trial. he would the mother of bene- analysis improved nothing that Wife’s health 1. There is in the record to indicate so any request- change that the mother has intention of in circum- would be a material custody physical primary or sole until her stances. fact, improved. In her last condition has modify custody party seeking a ar 2. A filing stated: rangement demonstrate that the child’s must parties’ stipulation, custody Pursuant to the materially changed, have circumstances jointly parties with shall be awarded to the is in the best interest of the that modification Sage primary physical to be with care Adelsperger Adelsperger, See However, child. because of Wife's Husband. 482, 1997). (Tenn.Ct.App. disability, physical in the event she is able reasonably antic changes not have been must point that to rehabilitate herself to the she previous custody ipated the at the time of Sage, physically can take care of Wife will Badenhope, 940 S.W.2d See Blair v. right request re- order. have the the Court to 1997) (Tenn.Ct.App. custody using comparative view a fitness bargain fit in agreeing any granting of the she made to vides basis for Mr. a stipulation. disagree. I divorce from on Ms. Earls fault-based grounds, including simply declaring the The requirement change that a of custo- parties divorced under Tennessee Code dy be only upon would considered Annotated section 36-4-129(b)(Supp.1999) filing request a is mother’s modification which itself fault-based. The trial court with parties’ stipulation. consistent However, refused to such and on goal divorce Tenn. stipulation, of the from 13(d) court, perspective, R.App.P. was Rule mother’s to eliminate review this requirement prove that she that an the only preponder evidence not does not change unforeseeable of circumstances had against findings ate fact of the trial by parties’ occurred since the award supports court but rather strongly the trial agreement that improved her health would court action. change
constitute of circumstances. drafted, stipulation, Whether the would I. by The Issues Drawn Pleadings accomplish goal been effective to however, In my is not opinion, clear. July complaint Earls’ is an issue we need not address at this sought only grounds of irrecon- represented by time. The mother was pursuant cilable differences to Tennessee throughout counsel willing and was to live 36-4-101(11). Code Annotated section stipulation, with the whether it would complaint Filed with the was a marital eventually accomplish what she wanted or (“MDA”) agreement dissolution executed not, Therefore, when it was entered.3 un- by July 1998. On Au- Cain, Judge like I do think she would gust Ms. Earls filed her answer deprived be of her agree- benefit disavowing and counter-claim the MDA ment an award of primary custody to asserting had pro- same been Koch, Judge father. Unlike I see cured undue influence Mr. Earls at us to stipulation reason for rule on the time she when was under duress. She on the to be applied standard re- prayed nor legal sepa- for neither divorce quest modification until those only ration but declaration the MDA presented issues are in the context of a ineffective, required that Mr. Earls be proceeding. modification keep his health her insured under insur- effect, I Judge concur with Koch policy employer ance with his and that he joint custody primary award marital enjoined dissipating from as- *17 father, physical custody to the but would sets. for temporary She further asked burden, leave the issue of mother’s if she futuro, support, alimony in reasonable at- later of this arrange- seeks modification torney general and fees relief. ment, proceed- for determination in that 13, 1998, ing. August On Mr. Earls filed a complaint motion for leave to amend his Judge dissenting. CAIN “In stating: support, Plaintiff would show grounds I that he for of respectfully holding dissent from the filed divorce on the court that the in this that his Wife pro record case irreconcilable differences and changed agreement. interpretation 3. later The and effective- Had the court not its custody, stipulation simply regarding mind we would have ness of not be be- would stipulation sought, fore us the the order relevant and until the mother of the unless court, presumably party proceeding, and no would be in a later a modification of custo- disposition dy- challenging a which reflected their heal, in- but help herself agreement portunity but a marital dissolution signed and therapy, refused help, refused stead agreement, court to void the has asked this Hus- therapy. quit occupational even allege Plaintiff to necessary that it is so employ- from his 13, 1998, family leave band took August On grounds.” additional recovery, and to assist Wife’s counter- ment Earls filed his answer to the Mr. even moved with mother validity of Husband’s asserting therein complaint refused to help. Wife MDA, parties denying that Ms. Earls was herself, the exercise refused to do mak- assist employed, and gainfully unable to be health, regain for her to necessary following assertion: “Husband ing the mar- of the and caused the breakdown help her- would show that Wife refuses self, riage. prescribed to do the exercises refuses her, can and would further show that Wife Mr. Earls complaint, In amended walker, can with the aid of a
walk custody the minor child sought absolute would show computer. work a Husband for Ms. Earls. reasonable visitation with apparently depressed isWife addition, sought he an absolute divorce Hus- improve despite does not want from Ms. Earls. helping efforts in Wife.”
band’s best stipula- entered into an oral parties 26, 1998, an filed August custody On joint they would tion providing leave to Mr. Earls agreed order having minor child with Mr. Mr. complaint, enjoining to amend his custody. stipulated This physical primary removing Earls from Ms. Earls from his implemented custody arrangement was policy providing health insurance Ms. Earls answered parties. Mr. Earls account for all monies should on De- complaint of Mr. Earls amended deposit the safe box and that he would response Specifically, cember $4,300 locat- remaining therein deposit com- one of the amended paragraph pending registry ed into the of the court custody, asserted: plaint relative to she court. This order further orders of the entered into upon stipulation “Based provided pay further that Mr. Earls would custody, there is regarding temporary alimony per month $211 to the aver- respond further need to continuing responsible Mr. Earls be amended to the ment.” In this answer retaining the joint debts and Mr. Earls only that sought Ms. Earls complaint, mi- checks for the monthly security social and that she be dismissed complaint Earls’ parties. nor son of the expenses. attorney awarded fees filed December Mr. Earls 10,1999, day On first after the On March complaint asserting part: case, his amended filed a Ms. Earls the trial of this for Re- Prayer entitled “Wife’s parties’ have one minor document [sic] 1. The ali- sought support, child child, and lief.” Ms. Earls and Husband is the fit Sage, of Mr. and the dismissal mony in futuro person to have proper requested weekend- Although complaint. is Earls’ She minor child. Wife parties’ *18 nightly disabled, visitation each weekend employ- long of capable she is some also This document rehabilitating phone of visitation. capable ment and is request: herself, following provide child made and will be able future time. support at some parties’ stipula- 2. Pursuant jointly to tion, custody be awarded shall inappropriate of guilty 2. Wife is care of primary physical parties the mar- causing breakup of conduct However, with Husband. Sage to be injury, op- she had riage. After Wife’s in of physical disability, breakup marriage because of Wife’s fault for the of her- the parties. the event she is able rehabilitate point physically self to the that she can from this record is the testimo- Missing Sage, care of will have the take Wife doctor, nurse, ny therapist, of or occu- right request the court to review cus- recovery pational specialist to establish tody comparative analysis using fitness alleged deficiencies in Ms. Earls’ efforts to improved so that Wife’s health would be recovery, in promote her own establish- change a material in circumstances. ing recovery the extent to which her is possible. predi- The case for Mr. Earls is II.The Evidence in the Case entirely subjective own obser- cated his majority opinion As the appropriately his vations and those of mother.
reflects, this record taken as a whole Judgment III. The of the Trial Court young people trying
shows two decent des- perately cope personal tragedy with a so in judgment Final was entered court, overwhelming appel- that no trial or April court on 1999. The trial late, inadequacy. feel its can but own carry his held that Mr. Earls had failed to entirely case for Mr. consists almost Earls proof that Earls had been burden of Ms. testimony testimony his own inappropriate marital conduct. guilty He that his his mother. testified stress held, spite of the The court further compounded this difficult situation was stipulation at the outset of frustration because Ms. Earls did not fol- contrary, to the the trial did not therapists, low advice her in Ms. the minor child should be vested prescribed use exercises or devices and did further ordered Mr. Earls. The court practice year After a walking. her existing Earls to maintain the health insur- needs, attending a half of to Ms. Earl’s Mr. Earls, coverage pay per ance on Ms. $570 “full Mr. just up Earls was to here.” futuro, month and all uncovered alimony Earls could not ap- states Ms. Earls fur- expenses. future medical The court her parently anger overcome her about permanent- ther held: “9. Plaintiff shall be silent, injury, and she noncommunica- enjoined bringing Sage around ly from tive, and cold toward Mr. Earls. resentful pres- having Laura Moore or Laura Moore frus- passed As time both became addition, In during ent his visitation. arguments calling. trated with and name enjoined from permanently Plaintiff In employed June of Mr. Earls Lau- long as he coming around Laura Moore Shortly a babysitter. ra Moore as thereaf- judgment, is married.” From this ter, with her developed relationship he appeals. in- did not unpersuasively he asserts intimacy.
clude ultimate Divorce IV. Earls, Appellant testimony, appeal, In his first issue on confirms failing Mr. Earls “the trial court erred many of the frustrations felt asserts a divorce to Mr. Earls based acknowledges the extent to which her deny- marital conduct.” help inappropriate tried to her. She denies husband Earls, the trial court try her own a divorce to Mr. that she failed to to facilitate a belief that there could be recovery but asserts that she did the best asserted parties. reconciliation between the With therapy. in her She acknowl- she could judge, the trial this record depressed that she became but de- all deference to edges hope *19 no reasonable for recon- put which could her at establishes nies conduct for a exists this case marriage par- ciliation. The between these Since no basis differences, Mr. two divorce on irreconcilable “irretrievably ties is broken” and inappro- Earls is with his assertion of must be left questions answered: 36-4- priate marital conduct. Section 1. Does evidence establish 101(11) provides for a divorce of Code part “fault” Earls on of Ms. so as to “the upon finding based of fault where entitle Mr. to a divorce cruel and guilty husband wife is of such or inappropriate marital conduct? inhuman treatment conduct towards granted a be Can divorce spouse unsafe and as render cohabitation Earls without finding Ms. Earls to be at may also improper which be referred fault? inappropriate marital con- pleadings upon duct.” In a case based alle- divorce The Tennessee recognizes Code no-fault fault, of the burden gations upon rests only in of divorce the context “irreconcil- plaintiff grounds establish of divorce differences” section able under 36-4- preponderance a of the If the evidence. 101(14) separation and two under years proof satisfy the chancellor that fails 36-4-101(15). section Tenn.Code Ann. divorce, to a find- plaintiff entitled such is 36-4-101(14), (15) §§ (Supp.1999). No di- appeal is on with a reviewable de novo granted can grounds vorce be of irrec- presumption of of the decree correctness oncilable differences without sworn Greene, of the v. chancellor. Greene agreement settling of all mat- 636, 641, TennApp. of property ters with such (1960). agreement approved by the court. Tenn. 103(b) dramatically Ann. In moved in re- (Supp.1999). Code Tennessee has 36-4— addition, years, legislative the code cent both enactment provides as follows: judicial from pronouncement, away (e) If has there been a contest or denial grounds for and ever fault-based divorce grounds of irreconcilable differ- Cary closer to no-fault divorce. See ences, granted no divorce shall be on the (Tenn.1996). Cary, 937 S.W.2d of grounds irreconcilable differences. However, Assembly, which the General However, a may granted divorce determining primary responsibility has grounds irreconcilable differences Tennessee, public yet has policy where there has been a contest or deni- adopt to the limited except no-fault divorce al, if properly executed marital disso- degree in two situations: where authorized agreement presented lution is there irreconcilable accom- are differences court. panied by complete marital dissolution 36-4-103(e) §Ann. (Supp.1999). TennCode and, marriage agreement in the case of a children, years with minor after two bar, In the case at the trial absence one of these separation. MDA, approve refused to rec- grounds pursuant to section 36- stipulated ord establishes no abuse of discretion 4-129, grounds re- proof of fault is still Also, the dif- this refusal. “irreconcilable § 36-4-114 quired. Tenn.Code Ann. were grounds ferences” for divorce strenu- (1996); Warren, see Warren ously contested. It is likewise clear that (Tenn.Ct.App.1985). years separation provi- the two continuous 36-4-101(15) long Court of Tennessee applicable Supreme of section sion ago are the inherent weakness only recognized if there no minor children of the laws in cases where parties. fault-based *20 898
inability
prove
to
Abney,
petition
chap-
fault leads to the continu-
filed a
in 1967 under
1963,
marriage
1933,
only.
asking
ation of
in name
In
ter 283 of
Public Acts of
Court,
to
ei-
grant
the court
an absolute divorce
speaking
Supreme
Chief
Abney.
him to
ther to
or Ms.
Said
Justice Grafton Green observed:
court:
supreme
court,
pointed
by
As
out
another
we
the paramount
We think
intent of the
must take into
mis-
consideration “the
in
legislature
enacting this 1963 amend-
arising
chiefs
turning
from
out into the
ment to this
found
Code section can be
world, in
celibacy, persons
enforced
who
in
statements made
Chief Justice
are neither married nor unmarried.”
Lingner
in
Tenn.
Lingner,
Green
v.
165
624,
Burlage
Burlage,
v.
65 Mich.
32
(1933).
525,
Prior to 283 of the Public Acts In a seek an absolute divorce. divorce Tennessee Annotated section Code parties, particu- action the desires provided grounds 36-802 for divorce from fault, larly party given are without and board on of cruel and grounds bed but does not control consideration such treatment, indignities inhuman intolerable Lingner the action of court. Chapter person, abandonment. Lingner, supra. ground The first provided power to the court to demurrer is without merit. an absolute divorce where a final decree of from bed had been in husband either sought and board relief him wife years granting effect for two with no reconciliation the court or to his parties. brought petition This between This an absolute divorce. Abney saga Abney years expiring v. Ab a result beginning filed as of two (1968). sepa- awarding 222 Tenn. the decree the wife ney, since Abney petition After Ms. obtained a divorce from rate maintenance. Under husband, authority award the bed and board the court has
899 upon award- force an unwanted might divorce. The decree husband a spouse by persistence can separate maintenance the innocent the wife ing abso- to reconcile to award the wife an refusal changed wrong-doing be years. policy The demurrer insofar as two The lute divorce. an additional seeking encourage a divorce to the and the State is to applies society husband Otherwise, judgment marriage by is sustained. reconcilia- preservation is and the cause of the court reversed to refusal to than reward a tion rather further proceedings. remanded for be reconciled. at
Abney, 433 S.W.2d 1963 Abney The battle over is not to This Court oblivious Annotat- to Tennessee Code amendment es- necessity upon hardships imposed by continued, and after 36-802 ed section peculiar The situation tranged spouses. court, being rebuffed in the trial again hardships parties makes their of these Abney to this appealed Harold James courts do onerous than usual. The more in part which held as follows: unlimited to relieve power not § 36-802 The 1963 amendment to pleasure, and license hardship create circum- did additional T.C.A. hardship undue to innocent expense of under which the courts in their stances parties. empowered were ab- discretion 531, 456 Abney Abney, Tenn.App. v. 61 divorces, granted but under solute when (1970). 364, 368-69 S.W.2d amendment, provisions such Supreme a divided Tennessee granted must be to the same divorces grips the conflict be came Court relief. original who obtained the person practical ap fault statutes and the tween Tenn., Abney, 160] v. Tenn.
Abney
[222
principles.
In Thomasson
of no-fault
peal
(1968)....
847
433 S.W.2d
(Tenn.
Thomasson, 755
779
S.W.2d
v.
1988),
both
sued for divorce
is
protests bitterly
Defendant
that he
fault. Fol
proved adequate
both
immured
the thralldom of enforced
law, the
lowing existing Tennessee case
celibacy
deplored
Ling
v.
Lingner
the court
majority of
held:
(1932
ner,
Tenn.
749
56 S.W.2d
is that
has proven
The result
Husband
[1933]).
but,
may
true,
This
accord
which
of action for divorce to
a cause
testimony
it is
parties,
to the
and Wife
is without valid defense
Wife
is
cohabit
unwilling
defendant who
for divorce
proven
cause of action
wife,
reverse.
with his
rather than the
a valid
which Husband is without
respect, celibacy
In this
of defendant
In such
defense.
circumstances
voluntary, rather than enforced.
award
to either
cannot
a divorce
Court
must be
respective
their
suits
party and
36-802,
§
amendment
Brewies, 27
dismissed. See Brewies
largely
aimed at those situa-
T.C.A.
(1944)
Tenn.App.
S.W.2d
par-
“guilty
wherein the so-called
tions
Akins,
Tenn.App.
supra
[61
Akins
willing to be
and the
ty” was
reconciled
(1969)
].
“innocent
declined
party”
so-called
Thomasson, 755
at 787.
limit-
Although
reconciled.
become
Harbison, concurring with
situations,
extremely
Justice
to such
it is
Chief
ed
sustaining
Cooper
legislature
intended to
Fones
Justices
doubtful
both
dismissing
action
wrongdoer
trial court
whereby
a means
provide
cases,
divorce,
first noted that the result suggested
justice
as the
of the case
in Justice
appeal
Drowota’s dissent was
may require.
Next,
ing.
Justice Harbison observed that
provides:
T.C.A. 36-4-119
dealing
statutes
with grounds for di
If,
cause,
upon hearing the
*22
vorce had not been amended
being
since
court is satisfied that the complainant
Brewies,
construed in Brewies v.
27 Tenn.
relief,
is entitled to
it may
granted
App.
(1943),
upon
such as irreconcilable differ
ing it
freeing
party
forever and
each
ences and separation for three consecutive
thereof,
obligations
from the
by
or
a
Thomasson,
years.”
Rightly wrongly, or the divorce changed should not be except simply for the because of statutes based on irrecon- cilable that fact. differences or absence for three years, consists grounds comprising If the Assembly General for the state fault or pro- misconduct. The divorce adopt wishes to the principle of dual ceeding, again rightly or wrongly, is ba- divorce, it may by amending do so exist- adversarial, sically being instituted a ing statutes. Unless and until it does petition sworn in which collusion must so, however, in my opinion the estab- § be denied. jury T.C.A. 36^4-107. A interpretation lished of the statutes may § be demanded. T.C.A. 36-4- should be retained. required Proof is even when the (Harbi Thomasson, 755 at 788-89 allegations of complaint are confess- son, J., concurring). ed, except for cases of irreconcilable dif- Drowota, Justice with whom Justice ferences. T.C.A. 36-4-114. That sec- concurred, O’Brien pointing dissented out tion provides: that statutory changes years in recent If the defendant admits the facts pointed toward change public policy, a charged the bill or petition and diminishing the requirement fault and upon relied for ground for a di- trending toward no-fault. vorce, or the bill be taken for con- fessed, shall, nevertheless, The revisions of our ali- the court divorce and divorce, decreeing mony before a statutes view except my a worked a ground change public policy divorce on the of this state irreconcil- differences, proof regarding able hear long- divorce. Divorce can no aforesaid, facts alleged as solely remedy and either er be understood as a dismiss the bill or petition spouse against guilty innocent present in the case that fault is for divorce while say This is not to spouse. only has sued grounds, Fault-based such irrelevant. Earls, itself, only case, as the divorce seeks at in the instant the ones issue
as complaint. Mr. Earls’ remain, dismissal of obviously as well fault-based See, 36-4-112, §§ e.g., T.C.A. defenses. open an If invitation Thomasson And fault is one factor 36-4-120. Assembly, produced only the General many determining among alimony. Chapter the Acts 393 of response. modest separation the continuous
of 1989 reduced
Code Annotated section
already recognized the
time of Tennessee
This Court has
15)
(now
36^1-101(12)
years
from three
case.
policy
issue in this
public
489 of the Acts of
years. Chapter
two
*23
is, however,
public poli
There
another
of
Acts of 1991
chapter
1989 and
234
the
cy
applicable
that is
in the
consideration
procedural amendments to Tennes-
made
hopelessly
of a
broken mar
aftermath
36-4-103,
section
rela-
see Code Annotated
by this
riage, that was enunciated
Court
differences without
tive
irreconcilable
many years ago, a
that also un
policy
altering
requirements for
the consent
legislative
the
dergirds
enactment allow
of
Chapter 543
grounds.
divorce on such
ground
the
of irreconcil
(now
1989,
Code
the Acts of
Tennessee
Farrar,
differences.
In Farrar v.
able
36-4-129),
that
provided
Annotated section
(Tenn.1977),
741
Mr. Justice
553 S.W.2d
di-
parties may stipulate grounds for
the
writing
Henry,
for the Court said: “We
in
of
but
ineffective
the absence
vorce
is
fully recognize that considerations of
stipulation.
such
public policy demand that the institution
safeguard
be
marriage
of
sheltered and
is
experience
The
Illinois
of
State of
But there
side
ed.
is an obverse
to the
Illi-
case.
to the
instructive
Prior
public policy
coin of
and consideration
Marriage
of
Marriage
nois
and Dissolution
given
society
must be
the fact that
is
In
1984,
was a
state.
Act of
Illinois
fault
by
ill
a legally
served
commanded con
667, 292
Sharpe
Sharpe,
Ill.App.3d
9
of a
marriage
tinuance
which exists
(1973),
plaintiff sought a
N.E.2d
566
only.
quote
opinion
name
We
from the
cruelty
trial
mental
with the
divorce for
Green,
of the late Chief
Grafton
Justice
carry
had
holding
court
that she
failed
525,
Lingner
Tenn.
Lingner, 165
proof.
judgment
of
her burden of
(1933):
534,
749,
As point
with the
appeal
affirmed on
court was
court,
we
ed out
another
must take
following
observation:
making
court
arising
into consideration ‘the mischiefs
marriage
it
that this
“While
is true
world,
turning
from
out into the
en
recon-
point
where
doubtless reached
celibacy,
who are neither
persons
forced
func-
not the
possible,
ciliation is not
(Citation
married nor unmarried.’
omit
parties
to determine that
tion of the courts
ted.) Society
in per
is not interested
are
marriage situation
impossible
to an
which no
petuating
good
status out of
merely
grounds
entitled to a divorce
may
which harm
can come
from
they
together.
live
It is
that
cannot
744, 745.
result.” 553 S.W.2d at
legislative
of
function of the
branch
this state to determine
government of
Thomasson,
(Drowota,
at
granted
divorces should be
whether or not
J., dissenting).
regardless
fault.” Id.
Thomasson,
It must
noted
re
years
in the
of In
Some
later
case
parties sued for divorce
both
both
Bates,
grounds Marriage
Ill.App.3d
adequately
fault
parties
proved
(1986),
Ill.Dec.
401(a)(2),
We note
in cases decided prior to
cept
recognize
or
that fact.”
401(a)(2),
codification of section
Illinois
recognized
courts
dissolutions
(1984),
(Gallaspy v. Gallaspy
459 So.2d
not
lightly granted
should
be
under the
(Robertson, J., dissenting).)
287
Act in furtherance of an expressed pub- We believe a contrary interpretation of
lic policy
preserve
marriages. Adop-
401(a)(2)
section
would be inconsistent
tion,
401(a)(2)
in
of section
and its
with the intent
provide
a no-fault
provision for dissolution based on irrec-
provision for the dissolution of mar-
differences, however,
oncilable
indicates
riages. We therefore determine that ev-
our
Assembly recognized
General
establish,
may
idence
as in other cases
policy
longer
served when the State’s
where irreconcilable differences are al-
in
interest
a
preserving marriage is not
leged, the existence of such a basis to
also shared
by
parties themselves.
support
the dissolution of a marriage
It seems clear that
legiti-
included as a
401(a)(2)
under section
where even one
object
mate
of marriage
a
is the fulfill-
spouse does not desire to continue to be
ment
party’s
of each
desire to continue
Gallaspy
married to the other.
See
legally
union,
sanctioned
evi-
(1984),
Gallaspy
459 So.2d
by
denced
the absence of differences so
(Robertson, J., dissenting).
serious as to
marriage
undermine the
here, Smoller,
relationship.
The
inquiry
critical
161 Ill.Dec.
578 N.E.2d at
(citations
given
omitted).
satisfaction of the
require-
other
(Tenn.
on no-
statutorily
conditions
mandated
Cary Cary,
In
On March
following the
allegations
held that the
of the
com-
trial,
day
first
Ms. Earls filed a
plaint
were not sustained
the evidence
document
Prayer
entitled “Wife’s
for Re
separate
but that the wife
entitled to
prayers
sought
lief.” These
for
relief
maintenance,
futuro,
support and a division of as-
part, alimony in
continued medical
insurance
sets under the terms of Tennessee Code
coverage,
property
division
attorney
fees.
for
prayers
Such
relief Annotated sections 36-4-121 and 36-5-
by Ms. Earls are
sepa
consistent
101. This court
that Mrs.
observed
Cla-
provisions
rate maintenance
of the trial
bough’s
answer did not
facts
allege
court judgment. This case is much akin to relating
separate
sup-
maintenance and
Stephenson v. Stephenson, 201 Tenn.
port but that her answer did contain
(1957),
where the husband
prayer
upholding sepa-
for such relief.
In
sought
prove
divorce and was unable to
maintenance,
rate
this court held:
grounds
distinguishing
for divorce.
In
Stephenson
Stephenson,
The case of
Lingner v. Lingner, 165 Tenn.
(1957)
201 Tenn.
We vacate the trial court’s have one minor recognize parties We that admits the absolute divorce. Wife child, the Sage. upon stipulation Based Husband has testified that he does visitation, property "Legal dy, support and issues separation shall not the bonds affect during legal separation upon by either permit parties to motion matrimony shall the but parties.” by agreement of the Tenn. party or cease matrimonial cohabitation. The 36-4-102(c) (Supp.1999). §Ann. may provide matters such as child custo- Code into by entered the I regarding my cus- And finished “—in sentence: tody, there is no further to respond need this of circumstances.” set to the averment.” Ms. did not seek is, basically saying we’re So what custody her pleading styled “Wife’s she is event able to rehabilitate her- Rather, Prayer for sought Relief’. she self, change is a that of circumstances preserve for a comparative herself fitness her allows to come back. And— analysis the future if her so that health think and that —I we all—and it improved, could as be considered a ma- the stipulation. change terial in circumstances. any Is there that? disagreement with trial, the very
At outset of the before offered, THE any disagree- evidence was COURT: Is there following that regard? discussion between the ment in par- court and the attorneys ties’ occurred: Well, Earls, MR. RYAN: Mr.—Mr. as MR. go DAVIES: Let me ahead and working far as out some around custody, address the issue of when I making details in—in seman- matter of deposition took Mr. Earls’ on December tics based on—I don’t know whatever 11th, 1998, we a stipula- entered into out, comes indicat- visitation but he had tion on—on the I think custody, and it he custody ed that wanted and then just would best for me to read that issue, again, have that same have— my into record. And proposal what only not thing, calling joint custody, it simply is track stipula- does what that Your Honor. indi- That’s what he has tion was. cated. This is me speaking: “While we’re on Well, THE COURT: throw out let’s record, just what I’d do like to just they may an alternative idea that what confirm to do in wanted thought not have about. if we do What of custody my terms And I’ll do Sage. joint custody, designate order just but best state that. If I don’t do him parent? residential That correctly, let me know. way you worry don’t have to about have agreed We that the standard, something up comes and she Sage joint custody should be in both situation, improves just you then parties; primary physical care of start from scratch. And don’t—don’t Earls, Sage should be with Mr. and that open up call it custodian physical we will work out our visitation.” say joint that can of worms. custo- Just And Ms. Ryan said: ‘Tes.” dy. Hopefully, these will be two folks And I say: then went on “The nothing raise this child if jointly able to part stipulation other is that be- changes. And be the else if—he would cause Earls has dis- physical parent. we can residential And then ability, in the event to reha- she is able to, if you talk about visitation if want bilitate herself to the that she point times, you all want to carve out we physically Sage, can take she care of that. can do How does that sound petition would have the opportunity you, Mr. Davies? Court to look at the take another *28 MR. DAVIES: That’s fine. That’s—I custody compara- situation a and have stipulation calling think that’s the it an- analysis tive fitness that —that one thing. other That’s fine. not ordinarily would have—” said, Ryan “Right.”
And Ms. That’s fine. MS. RYAN: that. And I’ve done help That determination. may THE COURT: —that I these factors and fu- I’ve made a list of may with later burdens the help weigh to and tried That it real clear. And— have a check list ture. makes clearly the factor grows up, the child the child factors. And and when these situation, they physical if nev- abil- parent’s looks on this relates to one back that Court, a physical that the child needs of ity provide er come back into to for the trying to be militates Earls’ fa- applaud parents greatly can the Mr. child equitable fair and under the circum- as vor. by clear by making this real stances However, if at all these fac- you look
that. sup- I’m not the one factor tors that’s MS. RYAN: I—I don’t think we supposed to look at follow. I’m posed to all, Hon- any problem with that at Your having the factors. And considered all or. credibility of the witnesses all the Earls, All right. THE COURT: evidence, I but one can not conclude you? how does that sound to custody Sage in that shall be thing Yes. MS. EARLS: solely Ms. And that’s awarded Earls. that Okay. THE COURT: Then going today. what I’m to do would be the the court with decree of Now, I say this about that. I want to issue, custody respect (emphasis to the I down each go need don’t think added). one, all every ten. weighed factor. I’ve preceding conversa- the wake list If later gota I’ve here. someone tion, any party neither introduced evidence findings in specific me to make wants since, custody plead- relative to under But suf- I’ll entertain that. regard ings stipulation agreed and the say fice it that both of [the] judge, trial there was no triable issue as child. That’s what’s help need custody. days Two of trial on oral testi- with Ms. Mr. in trouble gotten mony At the conclusion of the followed. many at night not there Moore. He’s trial, court, notice, with- the trial without is And far as this Court nights. as oral, out motion or and without written concerned, support standpoint, from a custody any challenging agree- party vastly is that Ms. Earls has support ment the court before the approved Mr. Earls superior support to the started, sponte sua ruled: ever has de- support has. Earls’ Since romantic inappropriate into an tough veloped this is part. Now Because it militates even more clearly suffering relationship, as a this child been wrongly rightly favor litigation, of this and I have because result Supreme said in in the Court Sut- at the factors set forth Tennessee looked statute, Courts de- proof, iles v. that when the custody I’ve heard Sutiles visitation, custody what termine issues and I’ve considered determine —to look Sage, they’re I’m also say have had to about but a child may jeopardize ruling that I think is evidence going to make a courts are to statute, sense but the physical 36-6- by the which is mandated a whether evidence of a cus- look at definite request time because in moral sense. jeopardized child is tody placed before determination married people these remain jurisdiction adjudi- long As judge having custody child to be jeopardizes this cation, morally court shall says the statute overnight with Moore exposed to Ms. and make ten factors consider *29 908
Mr. clearly, Earls what is at of least on fact. It to purports relieve Ms. Earls of surface, the her proof at burden of to perceived point change this establish a circumstances further to the time relieve to be a romantic situation. That’s obligation trial court of its of adjudicating not good for see Sage to that. question the change of whether or not a Now if you all were divorced and been circumstances has established. divorced, you’re not this issue would validity stipulation of such a questiona- is probably mostly be moot but it’s not. ble, Johnston, Holms v. Tenn. I’m awarding Therefore Ms. Earls cus- (Tenn.1873), but under the circumstances tody. validity this case the of the stipulation is Child custody decisions must be based a secondary parties consideration. Both a upon “comparative fitness” analysis by and agreed the stipulation court the Bah, the trial court. Bah 668 S.W.2d pre-trial, the strength and on of such an 663, 666 (Tenn.Ct.App.1983). this com- agreement, party neither offered evidence parative fitness analysis, court must on the issue. The custody trial court weigh the factors enumerated Tennes- the trial disregarded conclusion of see Code Annotated section 36-6-106. stipulation, comparative made a fitness Gaskill, Gaskill 936 S.W.2d analysis using the factors Tennessee Code section (Tenn.Ct.App.1996). Once this Annotated 36-6-106 and compara- custody awarded Ms. Earls without the tive analysis fitness is made custody is custody being issue ever tried. All court, awarded the trial such decision is agree on appeal that this action errone- judicata upon res facts in existence or ous and must be reversed. reasonably when foreseeable the decision was made. Adelsperger v. I Adelsperger, disagree the majority opinion with that, finding Ms. Earls (Tenn.Ct.App.1997). since has never sought her custody pleadings, the initial the issue When before the court is whether primary Mr. physical custody award to modify order, a prior custody it is not Earls should in effect and Ms. remain necessary to repeat comparative fit- establishing Earls has a the burden analysis ness but instead the burden rests change of circumstances. I would hold upon parent prove non-custodial a plead- unless Ms. Earls amends her material change in compel- circumstances ings under Tennessee Rules of Civil Proce- ling enough a change to warrant of custo- dure 15 in to seek a change order dy. Acuff, Musselman v. custody arrangement, there is no issue (Tenn.Ct.App.1991). be primary physical custody tried and What and the trial court should remain Earls. I would apparently attempted to do at the outset of further find if Ms. Earls amends was to stipulate custody ar- pleadings custody, to seek then the entire rangement whereby Mr. Earls would re- custody issue should tried on the merits primary physical custody tain of the child including an initial comparative fitness Ms. but Earls would be relieved of the analysis, custody since the never issue has obligation in petition for change future of been tried at all and since Ms. Earls prove change a material of cir- rely stip- entitled to approved stipulation, cumstance. Under ulation the same as Mr. Earls was. instead, court would the filing of such Spousal VII. Support petition,
future go directly to a compara- analysis. tive fitness It is in large part a holds, As majority has a stipulation of law than stipulation rather monthly government disability in the check *30 no party that this monthly surprising It is not Mr. Earls’ net amount of $648. action of to defend this $1,640. appeal attempts long approximately is As income Neither the trial court nor the trial court. he custody Sage, Earls of as Mr. retains to command power other court the payments of monthly receives SSI $323 Mr. Earls and Ms. reconciliation between a that majority the child. Since the holds nor Neither the trial court Earls here. custody of pending proof Mr. Earls retains command power has the to any other court circumstances, I in the change a of concur whatever to cease and desist Mr. Earls to that Mr. Earls should continue holding to him- mutually acceptable relationship is I concur payments. receive these SSI also presence The self and Laura Moore. in the spousal support provisions the signifi- in this case has Laura Moore opinion, except holding for the majority except the cance all between the nor duration of “neither amount grounds Earls Ms. with possibly provide or support this shall be modified extend- which she does not seek. divorce view, my this ed.” matter remains only in the trial court or power The vested subject through review trial court Laura is the concerning Moore this court March relationship between Mr. effect that the may Moore the Earls and Laura Injunction The to Laura Moore VIII. which has custody adjudication Sage as to Mr. the downplaying While Earls’ injunction This issued yet not been tried. his personal relationship extent of respect in this by the trial court Moore under the suspect proof Laura is by of this court and stayed previous order case, this the trial reaction court majority should I concur with Specifically, nothing astounding. short of respects, in all be dissolved. now held: court IX. Conclusion enjoined Mr. Earls re- will bringing child strained from around I the court’s dissent from Accordingly, Lorie Moore or Laura Moore and/or finding instead granting decision while having your Laura Moore at home of the trial court in dismiss action you have child during visitation. filed Mr. complaint for divorce Earls, may you harsh This seem I be affirmed. would also Earls should I’m but it’s as far as concerned action of the trial court find that the eyes upon of the Court based the evi- maintenance, payable by ordering separate you’re dence still married to Ms. Earls, affirmed should be Mr. Earls to may an me appellate and until tell under the stated herein and for reasons otherwise, only until are Roberts, and so then authority Stephenson, Cla down, but restraining going those orders Finally, my it is Flanagan. bough, and enjoin and going permanently I’m court in the action of trial opinion that Laura you coming from around Sage restrain child custody minor granting Moore, she period. Earls, That if comes having previously been to Ms. that, you court, you you stop can’t but now stayed by around of this should order may her. That seem further coming pro around remanded for be reversed and promote if Earls would protect ceedings harsh but that’s the merits Ms. seek, marriage relationship by proper pleadings, which exists choose to arrangements previ in this until I’m re- change and will exist case something ously agreed new comes before versed injunction prohibiting Mr. court. the Court. *31 Earls from associating with Laura Moore of the unfortunate and difficult circum- stayed has previously court, been by this stances Clark Earls Shirley which and I and concur with majority the that it Earls find themselves. original opin- Our should now be in respects all ions dissolved. reflect our best efforts to employ tra- legal principles justice ditional to do be- The judgment of the majority is more persons tween these two in fight of our appealing effecting closure of the rela- understanding of the facts the current tionship between this unfortunate young governing opinions law. Our also reflect husband and wife. Like Chief Justice our of recognition the practical limitations Harbison in Thomasson and Judge like on appellate both courts when however, in Flanagan, Susano I conclude they undertake sort out and rearrange existing that the statutes Ten- par- and financial of personal relations provide nessee no basis for the marriage irretrievably ties whose bro- divorce in this case. Until Tennessee Judges ken. cannot rekindle and af- love chooses to follow Illinois or other states extinguished. fection once it been has Nor enacting a pure statute, no-fault divorce they provide can assets or income that the Tennessee courts power judi- have no parties themselves do not have. Nor can cially legislate majori- such a divorce. The they good restore persons health who ty avoids this by finding truism “fault” on by unexpected bodies have been broken part of Ms. Since I Earls. am unable catastrophic injury. must Judges take the to find evidence in justi- this record parties as they find them and must consid- fy finding, such a I respectfully and reluc- er the facts of each case objectively. They tantly dissent. must apply applicable legal princi- also ples disciplined, dispas- to these facts in a OPINION DENYING PETITION way. opinions sionate The three filed in FOR REHEARING May this case on 2000 reflect that each KOCH, opinion J. delivered the for the member of the court discharged has this court, CAIN, COTTRELL, in which J. obligation. joined. J. I.
(Filed 20, 2000) June Shirley Ann petition Earls has filed a The PROPRIETYOF THE DIVORCE pursuant to Tenn.R.App.P. 89 requesting Ms. Earls first asks us to reconsider the this court to portions reconsider its May majority’s sup- conclusion that the facts opinion. Even though peti- ported an entering order accordance tion already raises issues that have been with Tenn.Code Ann. (Supp. 36-4-129 carefully considered each by member of 1999) declaring the divorced. This court, the nature of the case prompts request stems from Ms. Earls’ belief us opinion to file this elaborating our majority concept embraced opinion.1 initial “no fault” divorce and con- record Each court member has read the tains of a no evidence series of misconduct appeal fully entire record on and is part provides aware on her filing petition opinions. 1. Prior to the of Ms. Earls' The trial court's letter was rehearing, each this by member of court received not this influ- considered has not lengthy letter from regarding regard- the trial court our enced deliberations or decisions petition the substantive issues raised the issues raised in Ms. Earls’ May rehearing. and addressed the court in our Howard, 780 S.W.2d is mistak- Mondelli Ms. Earls grounds for divorce. (Tenn.Ct.App.1989). 772-73 en both counts. in her con- points out Judge As Cottrell majority’s do opinions court’s differences curring opinion, legal principles from traditional depart issue of whether around the revolve concept of “no fault” divorce. embrace inap- sufficient evidence contains record con majority opinion nor the Neither the *32 parties both by marital conduct propriate reasonably con opinion can be curring parties divorced declaring the to warrant may parties hold be di strued to that §Ann. 36- with Tenn.Code in accordance of proof stipulation or vorced without some and have Judges Koch Cottrell 4-129. for statutory grounds or more of the one affirmative; in question the this answered a that must grant divorce or trial courts the it in Cain has answered Judge while every parties time the themselves and Judge Koch’s negative. Accordingly, agreed have that continued cohabitation only opinions stand Judge Cottrell’s contrary, To the all three unacceptable. the evidence that propositions first, two — 31, the opinions May filed on 2000 rest on trial court’s against the preponderates settled, following well-recognized princi the no evi- findings that record contains ples: conduct inappropriate of marital dence (1) a of that divorce must rest one Ms. Earls would be and that Earls divorce, statutory grounds the reconcilia- pursuing “more aggressive Clothier, Tenn. see Clothier v. was petition if Mr. Earls’ divorce tion” S.W.2d 538, 232 App. second, per- that these two dismissed and (1950); in accor- should be declared divorced sons (2) trial courts be afforded that should § 36-4-129 Ann. dance with Tenn.Code wide latitude to determine whether the case and on the facts of this based a parties the case particular Cain dis- Judge state law. applicable divorced, be Marmino v. should see the but proposition former agrees with Marmino, Tenn.App. latter if he con- with the agree would 105, 107(1950); 238 S.W.2d evidence that the record contained vinced (3) inappropriate marital conduct Ms. of appellate must that courts review part. Earls’ fact findings trial of in a di- court’s using Tenn.R.App.P. vorce case the again Each member of the court 13(d) review, standard of see Hansel repre- the record counsel’s reviewed Hansel, 110, 111 of during argument light sentations oral (Tenn.Ct.App.1996); and that record con- insistence the Ms. Earls’ (4) 36(a) of marital no series Tenn.R.App.P. empowers tains evidence warrant part on her that would reviewing courts decisions misconduct
appellate relief, All judges divorced. declaring in divorce cases Judges original decisions. ap- with the facts and the adhere to their consistent conclude that the law, again are Koch and to which the Cottrell plicable Wade, of Ms. Earls’ be- evidence 897 record contains entitled. See Wade period a sustained between havior2 over (Tenn.Ct.App.1994); concurring rec- points opinion, her Earls’ out in not include Ms. 2. This behavior does Rather, party’s that each conduct ord demonstrates injury efforts. rehabilitation party pain and distress has caused other involves her treatment of behavior Judge party has and that neither toward Mr. As Cottrell attitude Earls. "intention. July March 1997 pain 1998 that judgment caused court’s would rendered Mr. and anxiety to Mr. ren- financially Earls and that support unable to him- dered unaccepta- continued cohabitation process self.4 addressing ble.3 For part, his Cain Judge problem, adheres we took into consideration Ms. his conclusion that the record physical condition, contains Earls’ current the dura- evidence of fault on part. Ms. Earls’ Ac- marriage, tion division cordingly, debts, majority’s conclusion re- marital assets and the other mains that the record contains applicable evidence factors contained Tenn.Code (d) inappropriate § marital Mr. Ann. (Supp.1999). conduct both 36-5-101 We de- and, therefore, and Ms. Earls termined sup- evidence does not court should have them port declared divorced that Ms. conclusion Earls will be accordance with 36- capable Tenn.Code Ann. of rehabilitating herself to the 4-129. point where she could financially self-
sufficient. Accordingly, we declined to II. spousal characterize support we awarded as alimony.” “rehabilitative Spousal Support Rather, we fixed a definite of fu- amount Ms. Earls also takes issue with aspects support ture paid monthly install- of the decision regarding spousal support. ments as authorized by Tenn.Code Ann. She asserts that did give not 5—101(a)(2)(A).5 § considering After 36— appropriate weight to her prospects for § the factors in Tenn.Code Ann. 36-5- rehabilitation, predicament should her 101(d)(1), Koch and deter- Judges Cottrell parents her, become unable to assist and mined that pay Mr. Earls should Ms. prospect she required that will be through per month March $450 public obtain additional assistance in the 2006.6 future. Each of these possibilities—and In apparent recognition of the limits on many others —were considered ability Mr. Earls’ to pay support, Ms. court during original analysis our Earls has not taken with issue the amount case. of the monthly payments May set in the
Our However, of the support opinion. consideration she insists began recognizing issue with that the trial these payments open- that should be left hope, 5—101(d)(1) or desire to live preserves with the other or to re- 5. Tenn.Code Ann. 36— relationship.” establish or maintain a marital alimony the distinction between in solido support stating rehabilitative that "Reha- 3. There is likewise evidence that Mr. Earls support sepa- bilitative maintenance is a engaged in during period conduct the same spousal support distinguished rate class of rendered that continued cohabitation unac- periodic alimony in from solido and alimo- ceptable to Ms. Earls. ny.” required pay That order Mr. Earls to more money spousal support and child and in 6. This payments amount includes of Ms. payment expenses of Ms. Earls' medical than coverage. Earls' continued In ad- insurance dispute he earned. There can be little that dition, obligated pay Mr. Earls is still such an cannot award stand. The combined unpaid expenses accumulated not medical spousal support effect of and child awards prior by insurance covered that were incurred obligor spouse cannot leave the unable to to the divorce. support generally or himself herself. See An Anderton, derton 678-79 (Tenn.Ct. 1998). App. pre- which she has not request custody, our dis- again ended. We reviewed viously done. spousal question position support that have determined based on regarding majority opinion There is case and the statu- applicable facts of this might be proof Earls’ burden of what Ms. the duration tory factors enumerated both time, she, future seek some should are support the amount award custody arrange- change modify appropriate. Koch, believing that Judge ment. stan- vary legal by agreement
cannot changing determining whether dards III. interests, custody child’s best Custody of the Child burden of that Ms. Earls’ determined tradi- be consistent with the matter, proof must issue As a final Earls takes change of circumstances” tional “material May portion opinion with a proof routinely followed burden joint custody Mr. Earls establishing Judge cases. Cottrell change-of-custody primary physical as the custodian. She the court need has determined had concedes she and Mr. Earls proceeding. in this address this issue arrangement prior to this agreed entirely by Judge avoids issue Cain agreement prem- but insists that her for an initial remanding case im- *34 understanding ised her an hearing wants one.8 With the if Ms. Earls provement in her physical condition would May posture, in this our court of change be a circumstance could bur- definitely not decide the opinions do custody trigger re-examination of the of presently issue concern den-of-proof issue. Thus, opin- May our Ms. Earls. opinions regarding This court’s cus prevent Ms. Earls from seek- ions do not they tody need to be understood for what custody parties’ any of child and All do do do. members so, she do time or for reason. Should agreed court have that the evidence does to the present any argument is she free custody arrange joint not indicate that a regarding burden of court she wishes pres ment would be at the inappropriate effect, legal any, if of including the proof, ent time that Mr. is unfit to be Earls custody parties’ stipulation. original custody parent joint the custodial ap- likewise free to use The trial court is arrangement.7 light parties’ of legal what principles decide propriate in conti child’s interest agreement proof should be. Ms. Earls’ burden stability, nuity Judges Koch and Cott- IV. inter
rell have determined the child’s establishing best our ests would be served Based on review of record opinions light without arrangement by May this court order our petition Ms. Earls’ Judge Cain would raised in proceedings. points further all the court have custody rehearing, members of open an initial award of leave original opinions their opportunity determined give Earls an remand Ms. joint agrees Judge Cain that the ordered regard, 8. 7. In this all members preponderates against arrangement agree proper is if Ms. Earls that the evidence is conclusion that request custody hearing. court’s timely does not "morally unfit” be the child’s somehow relationship parent because of his custodial Ms. Moore. should stand without modification. Ac-
cordingly, petition Earls’ for rehearing respectfully denied. The costs
petition for rehearing are taxed to Ms. execution,
Earls for which necessary, if
may issue.
AMERICAN MATERIALS
TECHNOLOGIES,
LLC.
The CITY OF CHATTANOOGA and the
Chattanooga City Council, and Adams
Lithographing Company, et al. Tennessee, of Appeals
Court Section,
Eastern at Knoxville.
June
Permission Appeal Denied
Supreme Court Feb.