                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    October 2, 1998 Session

        CAROLYN DONNA JARVIS v. THOMAS HOLLAND JARVIS

                     Appeal from the Circuit Court for Rutherford County
                               No. 36253    Don R. Ash, Judge



                   No. M1998-00905-COA-R3-CV - Filed November 9, 2000


This appeal involves the dissolution of a five-year marriage in the Circuit Court for Rutherford
County. Following a bench trial, the trial court granted the wife a divorce on the ground of
inappropriate marital conduct, divided the marital estate, and ordered the husband to pay long-term
spousal support. The trial court also directed the husband to maintain the wife’s health insurance
for three years and to reimburse her for medical expenses incurred prior to the divorce. On this
appeal, the husband takes issue with the decision to award the wife the divorce, the classification and
division of the marital property, and the long-term spousal support award. We have determined that
the spousal support award should be modified and that the remaining portions of the trial court’s
decree should be affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Modified in Part and
                                         Affirmed

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and HENRY F. TODD , SP . J., joined.

Randle W. Hill, Jr., Nashville, Tennessee, for the appellant, Thomas Holland Jarvis.

John B. Melton, III, Murfreesboro, Tennessee, for the appellee, Carolyn Donna Jarvis.

                                             OPINION

         Carolyn Jarvis and Thomas Jarvis met in the early 1990s. Mr. Jarvis, then approximately
fifty-three years old, worked as an operations manager at Genesco. Ms. Jarvis was ten years younger
than Mr. Jarvis and was unable to work because of several auto-immune disorders, including
degenerative nerve disease and liver disease. Both parties had been married three times before, and
each of their marriages had ended in divorce. They began living together in early 1991 and were
eventually married in August 1992. Mr. Jarvis was aware of Ms. Jarvis’s medical problems, but
neither he nor Ms. Jarvis fully appreciated their severity.

        The parties built a home in Murfreesboro following the marriage. They anticipated that Mr.
Jarvis would work until he was eligible for early retirement and that they would then move to Florida
to live on their boat. They used Mr. Jarvis’s salary for most of their living expenses, including the
additional premiums for covering Ms. Jarvis under Genesco’s group health plan. When Ms. Jarvis
began receiving monthly disability benefits, she kept these funds in a separate account but used a
portion of them to purchase groceries, to pay her medical insurance premiums, and to pay for the cost
of the prescription medications not covered by health insurance.

        Ms. Jarvis’s health continued to deteriorate, and her stays in the hospital became longer and
more frequent. The parties paint strikingly different pictures of the effect that Ms. Jarvis’s illness
had on their relationship. Ms. Jarvis asserts that Mr. Jarvis was unsympathetic and resentful about
being required to support her. She claims that Mr. Jarvis frequently complained about her inability
to maintain the household and to tend to his needs and that he repeatedly reminded her that she
would have nothing were it not for the health insurance he was providing. For his part, Mr. Jarvis
asserts that he was a good companion to Ms. Jarvis and that he supported her as best he could
throughout the marriage. According to Mr. Jarvis, he accompanied Ms. Jarvis on her extended
hospital visits and nursed her when she was ill or fatigued.

        Ms. Jarvis’s illness continued to place a strain on the parties’ relationship. In October 1993,
one of their arguments led to physical violence, and Mr. Jarvis was arrested for assault. In early
1994, Ms. Jarvis moved into her daughter’s house but returned to the marital home four or five
months later. The parties’ relationship did not improve, and Ms. Jarvis moved out of the marital
home for good in February 1996. On February 22, 1996, Ms. Jarvis filed suit in the Circuit Court
for Rutherford County, seeking a divorce on the grounds of irreconcilable differences and
inappropriate marital conduct. Mr. Jarvis counterclaimed for a divorce on the same grounds and
asserted that Ms. Jarvis was not entitled to any sort of spousal support because of the shortness of
the marriage.

        Mr. Jarvis met Patricia Edge in December 1996 and within a short time struck up a romantic
relationship with her. In June 1997, Ms. Edge moved into the marital home with Mr. Jarvis. Three
months later, Mr. Jarvis informed Ms. Jarvis that she would not be covered by Genesco’s group
health insurance plan after January 1, 1998.

       Following a bench trial in December 1997, the trial court filed an order on January 16, 1998,
granting Ms. Jarvis a divorce on the ground of inappropriate marital conduct. The trial court also
divided the marital property by awarding Ms. Jarvis $12,000 of the equity in the parties’ home,
$13,000 of the increase in the value of Mr. Jarvis’s retirement during the marriage, and various other
items of personal property. The trial court also directed Mr. Jarvis to pay Ms. Jarvis $500 per month
in long-term spousal support until her death or remarriage, to maintain Ms. Jarvis’s medical
insurance for thirty-six months, and to pay her $3,000 for medical expenses incurred prior to the
divorce.


                                            I.
                          THE AWARD OF THE DIVORCE TO MS. JARVIS

       Mr. Jarvis first takes issue with the trial court’s decision to award the divorce to Ms. Jarvis
because of his romantic involvement with Ms. Edge. He asserts that this relationship should not
supply grounds for divorce because it did not begin until after he and Ms. Jarvis had separated. Mr.

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Jarvis’s argument fails for two reasons. First, a party’s post-separation conduct may be considered
when determining which party should be awarded the divorce. Second, even if Mr. Jarvis’s post-
separation affair with Ms. Edge were not considered, the record contains ample evidence of Mr.
Jarvis’s inappropriate marital conduct during the portion of the marriage when the parties were still
living together.

        Conduct occurring after the parties have separated may provide grounds for awarding a
divorce. Accordingly, both this court and the Tennessee Supreme Court have upheld divorces on
the ground of adultery when the extramarital sexual relations occurred after the parties had separated.
Clark v. Clark, 644 S.W.2d 681, 682 (Tenn. Ct. App. 1982); Schwalb v. Schwalb, 39 Tenn. App. 306
328, 282 S.W.2d 661, 671 (Tenn. Ct. App. 1955). Adulterous acts provide a basis for awarding a
divorce on the ground of inappropriate marital conduct as defined in Tenn. Code Ann. § 36-4-
102(11) (Supp. 1999). Farrar v. Farrar, 553 S.W.2d 741, 744 (Tenn. 1977); Spencer v. Spencer,
No. 01A01-9109-CV-00328, 1992 WL 247641, at *2 (Tenn. Ct. App. Oct. 2, 1992) (No Tenn. R.
App. P. 11 application filed). Accordingly, the trial court did not err in basing its decision to grant
the divorce to Ms. Jarvis on Mr. Jarvis’s post-separation relationship with Ms. Edge.

        While not minimizing Mr. Jarvis’s post-separation relationship with Ms. Edge, we find that
the record contains stronger evidence to support granting Ms. Jarvis a divorce based on inappropriate
marital conduct. This evidence involves the way that Mr. Jarvis treated Ms. Jarvis during the
marriage prior to the separation. Mr. Jarvis placed demands on Ms. Jarvis that were inappropriate
in light of her illness. Despite his knowledge that Ms. Jarvis has a serious and debilitating illness,
Mr. Jarvis expected Ms. Jarvis to clean the house, do the laundry, prepare the meals, and otherwise
maintain the household. As time went on, Mr. Jarvis became intolerant of his wife’s physical
limitations and resented being required to support her. Finally, in October 1993, he was arrested for
assaulting Ms. Jarvis. Even though these charges were eventually dismissed, we have concluded that
Mr. Jarvis’s conduct during the later stages of the marriage was clearly inappropriate and that it
provided more than sufficient evidence to support granting Ms. Jarvis the divorce based on
inappropriate marital conduct.

                                               II.
                                DIVISION OF THE MARITAL ESTATE

       Mr. Jarvis next takes issue with the trial court’s division of the marital estate. Specifically,
he asserts that the trial court should not have awarded Ms. Jarvis a portion of his 401(k) account
because she did not contribute to the increase in its value. He also asserts that Ms. Jarvis should not
have received any portion of the equity in the martial home in Murfreesboro because he provided
the funds to construct it.

        An integral part of the process of dividing the property interests of divorcing parties is the
identification and distribution of the parties’ separate property. Batson v. Batson, 769 S.W.2d 849,
856 (Tenn. Ct. App. 1988). Property should not be included in the marital estate unless it is marital
property as defined in Tenn. Code Ann. § 36-4-121(b)(1)(A) (1996). Cutsinger v. Cutsinger, 917
S.W.2d 238, 241 (Tenn. Ct. App. 1995). Separate property cannot, by definition, be included in the
marital estate, and Tenn. Code Ann. § 36-4-121(b)(2)(D) provides that property acquired by a spouse
during a marriage by “gift, bequest, devise or descent” is separate property. Thus, gifts by one

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spouse to another that might otherwise be considered martial property should be classified as the
recipient spouse’s separate property. Hanover v. Hanover, 775 S.W.2d 612, 617 (Tenn. Ct. App.
1989); Batson v. Batson, 769 S.W.2d at 859.

         Dividing a marital estate is not a mechanical process, but rather is guided by considering the
factors in Tenn. Code Ann. § 36-4-121(c). Trial judges have wide latitude in fashioning an equitable
division of marital property, Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn. 1983); Brown v. Brown,
913 S.W.2d 163, 168 (Tenn. Ct. App. 1994), and appellate courts accord great weight to a trial
judge’s division of marital property. Wilson v. Moore, 929 S.W.2d 367, 372 (Tenn. Ct. App. 1996);
Edwards v. Edwards, 501 S.W.2d 283, 288 (Tenn. Ct. App. 1973). Thus, we will ordinarily defer
to the trial judge’s decision unless it is inconsistent with the factors in Tenn. Code Ann. § 36-4-
121(c) or is not supported by a preponderance of the evidence. Brown v. Brown, 913 S.W.2d at 168;
Mahaffey v. Mahaffey, 775 S.W.2d 618, 622 (Tenn. Ct. App. 1989); Hardin v. Hardin, 689 S.W.2d
152, 154 (Tenn. Ct. App. 1983).

         In accordance with Tenn. Code Ann. § 36-4-121(c)(1), trial courts consider the duration of
the marriage when making an equitable division of marital property. In cases involving a marriage
of relatively short duration, it is appropriate to divide the property in a way that, as nearly as possible,
places the parties in the same position they would have been in had the marriage never taken place.
Batson v. Batson, 769 S.W.2d at 859. Each spouse’s contributions to the accumulation of assets
during the marriage is an important factor when a relatively short marriage is involved. When a
marriage is short, the significance and value of a spouse’s non-monetary contributions is diminished,
and claims by one spouse to another spouse’s separate property based on non-monetary contributions
are minimal at best. Batson v. Batson, 769 S.W.2d at 859.

        These parties were married only five years. Given the relatively short duration of their
marriage, our primary goal would normally be to place the parties in approximately the same position
they were in before the marriage. However, attempting to return the parties to the pre-marriage
status quo may not be equitable in this case in light of Ms. Jarvis’s declining health and the
distinctive evidence of her financial need.

        Ms. Jarvis’s marriage to Mr. Jarvis did not adversely affect her financial condition. She
brought no significant assets to the marriage, and she made only modest financial contributions to
the marriage because her illness prevented her from working. Her marriage to Mr. Jarvis brought
her financial security she would never have been able to obtain on her own. However, returning Ms.
Jarvis to her pre-marriage circumstances without more would essentially leave her destitute because
her only source of income consists of $660 per month in Social Security benefits. Thus, despite the
relatively short duration of the marriage, we have concluded that giving Ms. Jarvis credit for her non-
monetary contributions to the marriage is appropriate under the facts of this case.

        The trial court found that Mr. Jarvis’s 401(k) plan increased by $22,011 during the marriage
and awarded Ms. Jarvis $13,000 of this increase. Mr. Jarvis argues that Ms. Jarvis is not entitled to
any portion of the appreciation in the value of his retirement during the marriage because the
retirement fund is not marital property and because Ms. Jarvis did not contribute to its increase in
value. Pension rights accrued during a marriage will be classified as marital property even though
the non-employee spouse did not make direct contributions to the increase in the pension’s value.

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Only pension rights accruing during the marriage will be considered marital property. Tenn. Code
Ann. § 36-4-121(b)(1)(A)-(B); Kendrick v. Kendrick, 902 S.W.2d 918, 926 (Tenn. Ct. App. 1994);
Batson v. Batson, 769 S.W.2d at 857. Accordingly, the trial court correctly determined that the
$22,011 increase in Mr. Jarvis’s 401(k) plan during the parties’ marriage is marital property.

         When retirement benefits become part of the marital estate, they are subject to the same
considerations as other property during the equitable division. The division need not be
mathematically equal, but must reflect essential fairness in light of the facts. Cohen v. Cohen, 937
S.W.2d 823, 832 (Tenn. 1996); Kendrick v. Kendrick, 902 S.W.2d at 929. We agree with the trial
court’s conclusion that the amount of increase in Mr. Jarvis’s 401(k) plan was at least in part
attributable to Ms. Jarvis’s contributions to the household. Under these circumstances, we conclude
that the $13,000 portion of Mr. Jarvis’s retirement plan awarded to Ms. Jarvis by the trial court was
a fair distribution.

        We turn next to the distribution of the equity in the Murfreesboro house. The trial court
valued the house at $160,000 and determined that there was $48,000 in equity in the home. The trial
court awarded Ms. Jarvis $12,000 as her share in the equity of this marital asset. We find no basis
to second-guess this decision. Even though Mr. Jarvis provided the funds to build the house, the trial
court concluded that the house was marital property because (1) the parties held the property as
tenants by the entirety, (2) Ms. Jarvis played an active role in the construction of the house, and (3)
Ms. Jarvis performed housekeeping and undertook other maintenance activities regarding the house.
These activities provide a sufficient basis for awarding Ms. Jarvis twenty-five percent of the equity
in the Murfreesboro house.

        As a result of the trial court’s division of the martial property, Ms. Jarvis received
approximately thirty-six percent of the value of these disputed marital assets. In light of the duration
of the marriage, the manner in which the trial court classified and divided the other assets, the
significant amount of separate property awarded to Mr. Jarvis, and the other factors in Tenn. Code
Ann. § 36-4-121(c), we have determined that the trial court properly classified the disputed property
and that the trial court’s division of the disputed assets was equitable in light of the facts of this case.
Accordingly, we affirm the trial court’s decision to award Ms. Jarvis $13,000 for her share in
increase in the value of Mr. Jarvis’s 401(k) plan during the marriage and $12,000 for her share in
the equity in the Murfreesboro house.1

                                                  III.
                                      THE SPOUSAL SUPPORT AWARD

        As a final matter, Mr. Jarvis asserts that it is inequitable in light of the shortness of the
marriage to require him to pay open-ended, long term spousal support and to require him to pay Ms.
Jarvis’s health insurance premiums for thirty-six months. We have determined that some spousal
support is warranted in this case in light of the duration of the marriage, the clear disparity in the
parties’ earning capacity, Mr. Jarvis’s knowledge of Ms. Jarvis’s medical condition when he married
her, and Mr. Jarvis’s conduct during the marriage. Thus, we have determined that the trial court

         1
         As the trial court provided in its January 16, 1998 order, Mr. Jarvis may pay Ms. Jarvis the required $25,000
from any of his accounts. He is not required to sell the Murfreesboro house or to liquidate his 401(k) plan.

                                                         -5-
correctly ordered Mr. Jarvis to maintain Ms. Jarvis’s health insurance for three years following the
divorce. We have also determined that the trial court properly determined that Mr. Jarvis should pay
$500 per month in spousal support. However, rather than leaving the term of this support open-
ended, we have determined that Mr. Jarvis should be required to pay this support for five years
following the entry of the divorce decree.

         There are no hard and fast rules for spousal support decisions. Crain v. Crain, 925 S.W.2d
232, 233 (Tenn. Ct. App. 1996); Stone v. Stone, 56 Tenn. App. 607, 615-16, 409 S.W.2d 388, 392-93
(1966). Trial courts have broad discretion to determine whether spousal support is needed and, if
so, its nature, amount, and duration. Garfinkel v. Garfinkel, 945 S.W.2d 744, 748 (Tenn. Ct. App.
1996). Appellate courts are generally disinclined to second-guess a trial court’s spousal support
decision unless it is not supported by the evidence or is contrary to the public policies reflected in
the applicable statutes. Brown v. Brown, 913 S.W.2d at 169; Ingram v. Ingram, 721 S.W.2d 262,
264 (Tenn. Ct. App. 1986).

        Spousal support decisions hinge on the unique facts of the case and require a careful
balancing of the factors in Tenn. Code Ann. § 36-5-101(d)(1). Hawkins v. Hawkins, 883 S.W.2d
622, 625 (Tenn. Ct. App. 1994); Loyd v. Loyd, 860 S.W.2d 409, 412 (Tenn. Ct. App. 1993). In
virtually every case, the two most important factors are the demonstrated need of the disadvantaged
spouse and the obligor spouse’s ability to pay. Varley v. Varley, 934 S.W.2d 659, 668 (Tenn. Ct.
App. 1996); Crain v. Crain, 925 S.W.2d at 234. Even though fault is a relevant consideration when
setting spousal support, Tenn. Code Ann. § 36-5-101(d)(1)(K), spousal support decisions are not
intended to be punitive. Duncan v. Duncan, 686 S.W.2d 568, 571 (Tenn. 1984); McClung v.
McClung, 29 Tenn. App. 580, 584, 198 S.W.2d 820, 822 (1946). The statutory preference for
rehabilitative support does not entirely displace other forms of spousal support when the facts
warrant long term or more open-ended support. Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995);
Isbell v. Isbell, 816 S.W.2d 735, 739 (Tenn. 1991).

        We recognize that in the case of marriages of short duration, the justification for spousal
support is diminished when the spouse seeking support has contributed little, directly or indirectly,
to the marriage. See Crain v. Crain, 925 S.W.2d at 234; Flanagan v. Flanagan, 656 S.W.2d 1, 3-4
(Tenn. Ct. App. 1983). However, we have also recognized that a spouse’s medical condition may
provide a basis for awarding spousal support. See generally Cranford v. Cranford, 772 S.W.2d 48,
52 (Tenn. Ct. App. 1989) (awarding one spouse support based on her medical needs and the other
spouse’s ability to pay).

        Ms. Jarvis’s medical condition leaves her economically disadvantaged compared to Mr.
Jarvis. While Mr. Jarvis’s annual income from all sources is approximately $63,250, Ms. Jarvis’s
annual Social Security payments amount to approximately $7,920. Ms. Jarvis is unemployable and
owns no other type of income-producing property or pension plans. In addition, she is faced with
mounting medical bills as her illness progresses. During the marriage, Ms. Jarvis used part of her
meager income for the parties’ groceries and to defray the cost of her medications that were not
covered by insurance. In light of these monetary contributions and her efforts to provide non-
monetary contributions to the marriage, we concur with the trial court’s decision that Mr. Jarvis
should pay Ms. Jarvis $500 per month in spousal support. However, because of the shortness of the
marriage and the fact that Ms. Jarvis is suffering from an illness that existed prior to the marriage,

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we have determined that this support obligation should be for a term similar to the length of the
marriage itself. Accordingly, we have determined that Mr. Jarvis’s obligation to pay $500 in
monthly spousal support should exist for five years from the date of the entry of the divorce decree.

        Ms. Jarvis has extensive medical problems and is essentially uninsurable at this time.
However, Mr. Jarvis may maintain Ms. Jarvis’s coverage under his employer-provided group health
insurance plan for thirty-six months following the divorce. The cost of health care is a proper
expense item to consider when awarding alimony. Storey v. Storey, 835 S.W.2d 593, 597 (Tenn. Ct.
App. 1992); Janet L. Richards, Richards on Family Law §12-5(a) (1997 & Supp. 2000).
Accordingly, we affirm the portions of the order directing Mr. Jarvis to maintain COBRA health
insurance coverage for Ms. Jarvis by paying the $180 monthly premium for thirty-six months, and
to pay Ms. Jarvis or her health care providers an additional $3,000 for medical expenses incurred
prior to the divorce. Mr. Jarvis shall be entitled to a credit against his $500 monthly spousal support
obligation for the payment of each $180 monthly premium made to maintain Ms. Jarvis’s health
insurance.

                                                  IV.

        We affirm the trial court’s decision to grant Ms. Jarvis a divorce on the ground of
inappropriate marital conduct and the manner in which the trial court classified and divided the
parties’ marital estate. We also affirm the trial court’s decision to require Mr. Jarvis to maintain Ms.
Jarvis’s health insurance and to pay the premiums for this insurance for three years. We modify the
trial court’s spousal support award to limit its duration to five years from the entry of the final
divorce decree. We tax the costs to Thomas Holland Jarvis and his surety for which execution, if
necessary, may issue.



                                                        ___________________________________
                                                        WILLIAM C. KOCH, JR., JUDGE




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