JIMMY E. SMITH,                     )
                                    )
      Plaintiff/Appellee,           )
                                    )    Warren County General Sessions
                                    )    Case No. 6212
VS.                                 )
                                    )    Appeal No.
                                    )    01A01-9602-GS-00074
CONNIE SUE ARGO SMITH,              )

      Defendant/Appellant.
                                    )
                                    )                          FILED
                                                               October 4, 1996
                  IN THE COURT OF APPEALS OF TENNESSEE
                                                            Cecil W. Crowson
                        MIDDLE SECTION AT NASHVILLE        Appellate Court Clerk



                     APPEAL FROM THE WARREN COUNTY

        GENERAL SESSIONS COURT OF MCMINNVILLE, TENNESSEE


                 HONORABLE RICHARD MCGREGOR, JUDGE


LARRY B. STANLEY
Stanley & Bratcher
P.O. Box 568
McMinnville, Tennessee 37110
ATTORNEY FOR PLAINTIFF/APPELLEE


BERNARD SMITH
BPR #2609
P.O. Box 490
McMinnville, Tennessee 37110
ATTORNEY FOR DEFENDANT/APPELLANT

THOMAS F. BLOOM
BPR No. 11950
500 Church Street, 5th Fl.
Nashville, Tennessee 37219
ATTORNEY FOR DEFENDANT/APPELLANT


                    MODIFIED, AFFIRMED AND REMANDED.


                               HENRY F. TODD
                               PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE

CONCURRING IN PART AND
DISSENTING IN PART
WILLIAM C. KOCH, JR., JUDGE
JIMMY E. SMITH,                               )
                                              )
       Counter Defendant/Appellee,            )
                                              )       Warren County General Sessions
                                              )       No. 6212
VS.                                           )
                                              )       Appeal No.
                                              )       01A01-9604-CV-00160
CONNIE SUE ARGO SMITH,                        )
                                              )
       Counter Plaintiff/Appellant.           )




                                    OPINION


       The counter-plaintiff, Connie Argo Smith, appeals from the Trial Court’s judgment

awarding her a divorce on grounds of cruel and inhuman treatment. The Trial Court also

awarded her the marital residence and contents, a 1990 Astro Mini Van, and $100,000.00 cash.

The Trial Court required the counter-defendant, Jimmy E. Smith, to pay all marital debts

including the mortgage on the home. The court also awarded Mr. Smith a farm, commercial

property, the “Smart Station” property, a houseboat, a bass boat, a Chevrolet truck, Mercedes

automobile, riding mower, tractor, personal effects and unspecified stocks.



       The appellant-wife presents the following issues for review:

               I.     Whether the Trial Court abused its discretion in failing
               to award alimony in Futuro, or a mixed In Futuro/Rehabilitative
               Alimony Award, and attorney’s fees to the wife who was the
               financially-disadvantaged, innocent spouse in the divorce.

               II.     Whether the Trial Court erred in enforcing the
               “Reconciliation” contract which purported to exclude the
               husband’s interest in his corporation from any claims of the wife
               in the event of divorce in return for the wife receiving an interest
               in the martial home.

               III.    Whether the Trial Court abused its discretion in failing to
               credit the wife with the value of her inheritance in the division of
               property.

               IV.    Whether the wife should be awarded her attorney’s fees
               incurred in this appeal.




                                              -2-
       The parties were married on May 19, 1984, at which time the husband was 36 and was

engaged in the operation of a corporation, National Sheet Metal Company, in which he owned

a 1/3 interest.     The wife was 46 and self-employed as an independent dental laboratory

technician. No children were born to the union.



       During the marriage, the wife’s laboratory work ceased, and she became a full time

homemaker for the husband, his son, grandchildren, and invalid father. She also managed the

husband’s rental property. The husband’s business prospered and the parties accumulated a

substantial marital estate.



       On April 23, 1993, the parties executed a document reading as follows:

                                           CONTRACT

                    This contract is made by and between JIMMY E. SMITH
                  AND CONNIE SMITH, hereinafter referred to as JIMMY and
                  CONNIE. The parties are married, have had some difficulties,
                  but are attempting to make their marriage successful. As a
                  part of this attempt, the parties are in the process of agreeing
                  upon property rights in the event of death or divorce. This
                  negotiation is not complete, but the parties have reached a
                  partial agreement which they desire to reduce to writing and
                  make absolutely binding. The promises contained herein are
                  made in consideration one of the other, and it is agreed that
                  in the event of a divorce, Jimmy’s interest in National Sheet
                  Metal Machines, Inc. shall not be affected in any way, or even
                  considered by the parties or by the court in the division of
                  marital assets. It is further agreed that if Jimmy should die
                  while the parties are married, Connie will have a life estate for
                  the remainder of her natural life in and to the house and lot at
                  109 North Hills Drive, remainder to the children, Jeff and Gail.
                  In the event of divorce, she shall receive a one-half interest in
                  the equity in the house and lot. In the event of Jimmy’s
                  death, at any time thereafter if Connie desires to sell the house,
                  Jeff and Gail must consent to the sale and the proceeds shall be
                  divided among the three equally.

                     It is understood and agreed that the above provisions do not
                  attempt to make a complete adjustment of property rights, but
                  these provisions are of great importance to both parties and may
                  be enforced by any court of law, equity or probate. The parties
                  understand that the consideration or value of the above
                  promises may be unequal, but they agree that the consideration
                  given by each party is entirely adequate to sustain the validity
                  of this agreement.



                                                 -3-
                  WITNESS our hands this the 23 day of April, 1993.

                  (Signed)                       (Signed)
               JIMMY E. SMITH                  CONNIE SMITH


       On October 21, 1994, the husband filed suit for divorce, alleging cruel and inhuman

treatment and inappropriate martial conduct without specifics, and without reference to the above

contract.



       The wife answered denying misconduct and counterclaimed for divorce, alimony and

division of martital property.



       The judgment is summarized above.



       T.C.A. § 36-5-101(d) requires that, in making a grant of alimony, the Court shall consider

all relevant factors, including the separate property of the spouse who is to receive the alimony,

and the share of the martial property awarded to that spouse. It is therefore necessary that this

Court consider the appellant’s second and third issues regarding property before considering the

first issue regarding alimony.



       In respect to the Reconciliation Agreement, the Trial Judge commented orally as follows:

               THE COURT: I take this contract to mean that Mr. Smith was
               interested in preserving the integrity of his business; that his
               business would not be affected by the outcome of this divorce
               proceeding in any manner; that it was not to be disturbed.
               (1) - she didn’t want to be thrown out on the street with
               nothing, and he did not want to have the corporation, which
               is made up of he and two (2) other individuals, destroyed. So,
               I am going to enforce this contract to the extent that National
               Sheet Metal Machines, Inc., will not be affected in any way.
               That asset will be used as part of the valuation process, but
               nothing in this divorce is going to affect his interest in National
               Sheet Metal, Inc. I am not going to require that to be sold or
               in any way affected, because that is what these people were
               trying to do at the time they entered this contract. Now, this is
               a reconciliation contract to try to resolve some differences.
               They did resolve some differences at that time. They lived
               together, and the divorce was filed thereafter. I think that each
               one of them knew enough about what they were giving up to

                                               -4-
               make this enforceable. I think the question as to whether or
               not there was consideration for the contract has been met,
               because there were mutual promises. Each one got something;
               each one gave up something. Therefore, there is a consideration,
               and the contract will be enforceable to that extent. (Emphasis
               supplied)


       The decree of the Trial Court does not mention the interest of the husband in his business.



       The parties filed schedules required by Rule 15 of the Rules of this Court. The wife’s

schedule is appended hereto as exhibit A and the husband’s schedule as exhibit B. The value of

the husband’s interest in his business is not listed on either schedule.



       In this Court, the wife argues that the Trial Court erred in enforcing the reconciliation

agreement. Such agreements have been recognized as enforceable in Tennessee, if entered into

freely, knowledgeably, and in good faith without exertion of duress or undue influence.” Hoyt

v. Hoyt, 213 Tenn. 117; 372 S.W.2d 300 (1963); Gilley v. Gilley, Tenn. App. 1989, 778 S.W.2d

862, 863.



       The circumstances which existed at the time of the agreement determine its enforceability

under the above criteria. Perkinson v. Perkinson, Tenn. 1990, 802 S.W.2d 600, 603.



       On September 9, 1996, in the case of Randolph v. Randolph, the Supreme Court

invalidated an interspousal property agreement on the ground of failure to disclose material

information regarding the value of property. Appeal No. 03-501-9510-CV-00119. (Tenn. Sept.

9, 1996).



       The wife insists that the husband failed to disclose the value of his interest in the

corporation at the time of her waiver of her rights to a share in event of divorce. This insistence

and her testimony are corroborated by the testimony and actions of the husband during these

divorce proceedings. The husband testified that he “had no idea” and “didn’t really know” what



                                               -5-
the corporation was worth in 1984 or 1994. An accountant hired by the wife to appraise the

corporation was denied access to corporate records. The record indicates that the net worth of

the corporation increased during the marriage $266,000, of which the husband’s one-third share

would be $88,881. However, there is no evidence that the wife contributed in any degree to the

increase except as a homemaker.



       This Court concludes that, if the omission of the increase in value of the corporation

during the marriage was error, it did not affect the resulting judgment and was therefore not

grounds of reversal or modification of the judgment.



       Reverting to the Rule 15 schedules, the home, which was awarded to the wife debt-free

was valued at $62,500 to $69,000.



       A 41 acre farm, which was valued at $25,600 to $32,000 was awarded to the husband.



       The equity of $10,100 in a commercial property was awarded to the husband.



       The property occupied by the corporation is owned by the stockholders. The husband’s

share is one-third. Apparently, the parties do not differ greatly (only $1,000 difference) upon the

value of the husband’s interest therein. The husband acquired his interest in this property prior

to marriage and there is no evidence that the wife contributed to its preservation or improvement.

No part of this property appears to be a part of the marital estate.



       The wife makes no specific complaint regarding the vehicles, water craft, household

goods or stocks other than that of husband’s business.



       In summary, the wife received approximately $65,000 in real estate, $7,500 in vehicle,

$3,000 in furniture, and $100,000 cash - a total of approximately $175,500.



                                               -6-
       The husband received approximately $28,000 in a farm, $11,000 in commercial property,

$9,750 in vehicles, $62,750 in water craft, $16,300 in equipment and $4,000 in corporate stock -

and the increase in the value of his interest in his business - a total of $192,000. At the

conclusion of the trial, the Trial Judge made the following oral statements:

               THE COURT: Gentlemen, I have looked at all these figures.
               I have looked at the financial statements on the businesses; I
               have looked at your appraisals on the real estate and all the
               other pieces of personal property; I have looked at your
               wish list and what you want, and I have also looked at this
               contract. Now, as I said earlier, the business will not be
               affected by my ruling, because I think this agreement was
               to keep it out of any sale. However, I am taking into
               consideration the value of some of these assets. And, in
               the consideration of an equity adjustment and the other
               things, including the business, she will receive the sum of
               one hundred thousand dollars ($100,000) of which five
               thousand ($5,000) has already been paid.

               MR. STANLEY: How long has he got to pay that, if Your
               Honor please? Can he pay it over a period of years?

               THE COURT: No, because I am not going to grant her
               alimony, and she needs this money. And, if she puts this
               money in the bank, she can draw interest, and that will be
               some income.


       The wife insists that her inheritance of $33,566 which she contributed to the marital

estate be refunded to her. This amount became a part of the marital estate by transmutation.

Batson v. Batson, Tenn. App. 1988, 769 S.W.2d 849, 858.



       This court is satisfied that the distribution of marital estate to the wife was equitable as

required by T.C.A. § 36-4-121.



       Appellant’s first issue complains of the failure to allow her alimony. She testified

without contradiction that her needs were $2,607 per month and that her income was $213 per

month. The only addition to this was the interest on the $95,000 net to be received from the

husband. 6% interest on $95,000 is $475 per month. Thus, the income available to the wife

receiving the $95,000 was approximately $700 per month. The wife should be allowed to

reserve the principal of $95,000 for retirement and should not be required to encroach upon it

                                               -7-
for current expenses. Considering the above earnings and interest, the wife’s need for support

amounted to approximately $1,900 per month.



       The wife has been a licensed dental laboratory technician operating her own business

which was discontinued for lack of patronage. She has also been a licensed beautician. She

suffers from depression and an allergic condition which requires expensive medication. Her

dental laboratory equipment has been sold to pay expenses.



       The income of the husband is adequate to enable him to pay the $1,900 per month

alimony needed by the wife.



       T.C.A. § 36-5-101(d) provides in part:

               (d)(1) It is the intent of the general assembly that a spouse
               who is economically disadvantaged, relative to the other
               spouse, be rehabilitated whenever possible by the granting of
               an order for payment of rehabilitative, temporary support
               and maintenance. Where there is such relative economic
               disadvantage and rehabilitation is not feasible in consideration
               of all relevant factors, including those set out in this
               subsection, then the court may grant an order for payment of
               support and maintenance on a long-term basis or until the
               death or remarriage of the recipient except as otherwise
               provided in subdivision (a)(3). Rehabilitative support and
               maintenance is a separate class of spousal support as
               distinguished from alimony in solido and periodic alimony. In
               determining whether the granting of an order for payment
               of support and maintenance to a party is appropriate, and in
               determining the nature, amount, length of term, and manner of
               payment, the court shall consider all relevant factors, including:
                  (A) The relative earning capacity, obligations, needs, and
               financial resources of each party, including income from
               pension, profit sharing or retirement plans and all other sources;
                  (B) The relative education and training of each party, the
               ability and opportunity of each party to secure such education
               and training, and the necessity of a party to secure further
               education and training to improve such party’s earning capacity
               to a reasonable level;
                  (C) The duration of the marriage;
                  (D) The age and mental condition of each party;
                  (E) The physical condition of each party, including, but not
               limited to, physical disability or incapacity due to a chronic
               debilitating disease;
                  (F) The extent to which it would be undesirable for a party
               to seek employment outside the home because such party will

                                              -8-
                be custodian of a minor child of the marriage;
                   (G) The separate assets of each party, both real and personal,
                tangible and intangible;
                   (H) The provisions made with regard to the marital property
                as defined in § 36-4-121;
                   (I) The standard of living of the parties established during the
                marriage;
                   (J) The extent to which each party has made such tangible
                and intangible contributions to the marriage as monetary and
                homemaker contributions, and tangible and intangible
                contributions by a party to the education , training or increased
                earning power of the other party.
                  (K) The relative fault of the parties in cases where the court,
                in its discretion, deems it appropriate to do so; and
                  (L) Such other factors, including the tax consequences to
                each party, as are necessary to consider the equities between
                the parties.

                (2) An award of rehabilitative, temporary support and
                maintenance shall remain in the court’s control for the duration
                of such award, and may be increased, decreased, terminated,
                extended, or otherwise modified, upon a showing of substantial
                and material change in circumstances. Rehabilitative support
                and maintenance shall terminate upon the death of the recipient.
                Such support and maintenance shall also terminate upon the
                death of the payor unless otherwise specifically stated. The
                recipient of the support and maintenance shall have the burden
                of proving that all reasonable efforts at rehabilitative have been
                made and have been unsuccessful.


        The circumstances of this case require that support be allowed to the wife on the terms

set out in the statute.



        The judgment of the Trial Court is modified to require that the husband pay to the wife

$1,900 per month rehabiltative alimony for a period of two years, subject to increase, decrease,

termination or extension by the Court at any time upon satisfactory showing that the wife has

been partially or fully rehabilitated. The court may also modify its judgment if the wife has

failed to make a bona fide effort to rehabilitate her earning capacity, or if rehabilitation involves

additional expenses, or if the wife has made a bona fide effort to rehabilitate her earning capacity

and has been unable to do so. These modifications are to be effective on the date of the final

decree, July 28, 1995.




                                                -9-
       In view of the resources of the wife the allowance of attorneys fees at the trial or appellate

level is not deemed appropriate.



       As modified, the judgment of the Trial Court is affirmed. Costs of this appeal are taxed

against the plaintiff-husband. The cause is remanded for entry of judgment in conformity with

this opinion and for further necessary proceedings.



                      MODIFIED, AFFIRMED AND REMANDED.



                                               ___________________________________
                                               HENRY F. TODD
                                               PRESIDING JUDGE, MIDDLE SECTION




CONCUR:


____________________________
BEN H. CANTRELL, JUDGE


CONCURRING IN PART AND
DISSENTING IN PART
WILLIAM C. KOCH, JR., JUDGE




                                               -10-
