                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     April 2, 2001 Session

                 ARTHUR W. KERR, III v. CHRISTINA A. KERR

                    Appeal from the Chancery Court for Robertson County
                             No. 14371   Carol Catalano, Judge



                      No. M2000-01730-COA-R3-CV - Filed May 9, 2001



The trial court granted the parties a divorce, divided the marital property, and ordered child support,
but not alimony. On appeal, the wife argues that the trial court erred in its division of marital
property and in its failure to award her rehabilitative alimony. We affirm the trial court.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                Affirmed and Remanded

BEN H. CANTRELL , P.J., M.S., delivered the opinion of the court, in which HOUSTON M. GODDARD
and WILLIAM B. CAIN , JJ., joined.

D. Scott Parsley, Nashville, Tennessee, for the appellant, Christina A. Kerr.

Charlotte U. Fleming and Timothy J. Richter, Springfield, Tennessee, for the appellee, Arthur W.
Kerr, III.

                                             OPINION

                                    I. AN UNHAPPY MARRIAGE

       Arthur Kerr, III and Christina Collum married on December 27, 1993. The one child of their
marriage, William Dustin Kerr, was born on July 18, 1996 with a congenital heart defect that has
required surgery, and will require additional surgery as the child matures and his body grows.

        The proof shows that the marriage of the parties was not a happy one. It was established
through the testimony of several eyewitnesses that Christina Kerr was often physically violent with
her husband, and would hit him or kick him without provocation, especially after having a few
drinks. It is unclear whether Arthur Kerr was ever violent towards his wife. He testified that he
never struck her, and only defended himself against her attacks, but she claimed that he attacked her
on one occasion, resulting in some bruises. She subsequently swore out a criminal warrant against
Mr. Kerr, and he pled guilty to simple assault, and was placed on probation for one year.

         Ms. Kerr had an adulterous affair with a man named Scott Guthrie early in her marriage. At
trial, she denied that the affair was still going on. She stated, however, that Mr. Guthrie was still her
best friend and she admitted that she hung out with him several times a week. The evidence
presented at trial included a videotape of Ms. Kerr leaving Mr. Guthrie’s house at 5:00 in the
morning. Ms. Kerr conceded they she and Mr. Guthrie might possibly “get together” after the
divorce. The ruling of the court indicates that the judge did not believe Ms. Kerr’s denial that the
affair continued throughout the marriage.

        After Mr. Kerr became convinced that his wife’s affair with Scott Guthrie was still
happening, he moved out of the marital home and into his father’s home. On January 13, 1999, Mr.
Kerr filed a Complaint for Absolute Divorce in the Chancery Court of Robertson County, on the
ground of inappropriate marital conduct. He asked for custody of Dustin, or in the alternative for
joint custody. Because Ms. Kerr had allegedly threatened to take Dustin to Alabama where her
parents lived, and that his father “would never see him again,” Mr. Kerr also asked for a restraining
order to prevent his wife from removing their child from the state.

       Ms. Kerr filed an answer and counter-complaint for divorce six days later. She claimed that
Mr. Kerr had been guilty of a long history of mental and physical abuse towards her, and asked for
exclusive custody of Dustin, child support, and alimony.

        The trial court granted the restraining order on April 22, 1999, and awarded Ms. Kerr
temporary custody of Dustin, with visitation by the father. Mr. Kerr was ordered to pay temporary
child support of $130 per week, as well as temporary spousal support of $130 per week. Mr. Kerr
did not fully comply with this order, and Ms. Kerr filed a Petition for Contempt against him. Mr.
Kerr subsequently filed a Motion to Reduce Pendente Lite Spousal and Child Support. He stated that
he had taken a new job, which required fewer hours, but which also reduced his income to a
significant extent.

       After hearing these and other motions filed in this case, the court issued an order on March
30, 2000. The court found that Mr. Kerr had been paying only $110 per week in child support, and
had not paid any alimony at all to Ms. Kerr, resulting in a total arrearage of $2,210. Mr. Kerr was
found to be in contempt, and he was sentenced to ten days in the Robertson County jail, with the
sentence to begin thirty days after the date of the order. He was ordered to pay his arrearage, with
the court declaring that it would consider suspending his sentence if he paid it before the sentence
began. A subsequent hearing resulted in a finding that Mr. Kerr had paid his arrearage in full, and
the court entered an agreed order, suspending his sentence.

       The court’s order of March 30 also contained a finding that Ms. Kerr’s income had increased,
and her indebtedness had decreased, thus reducing her need for spousal support. The court
accordingly reduced Mr. Kerr’s support obligation from a total of $260 per week to a total of $210


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per week, and ordered Mr. Kerr to henceforth pay the support amount into the clerk’s office for
disbursal to Ms. Kerr.

        The final hearing on the divorce was conducted on May 18, 2000. The court heard evidence
as to Ms. Kerr’s prolonged infidelity with Mr. Guthrie, as well as evidence that after the separation
of the parties, Mr. Kerr established a sexual relationship with a woman named Saryna Parker. Mr.
Kerr testified that at one point he moved out of his father’s house and rented a house for himself and
Ms. Parker, and that they lived together in that house for three or four months. The evidence also
indicated that Ms. Parker could not obtain a checking account of her own because of a recent
bankruptcy, and that Mr. Kerr therefore gave her access to his account.

        The trial court issued its final decree on June 14, 2000. The court found both parties to be
equally at fault for the failure of their marriage, and declared them both divorced. Sale of the marital
home was ordered, with the net proceeds (estimated to come to about $40,000) to be divided equally
between the parties. A 1997 Ford Thunderbird that Ms. Kerr had been driving was awarded to Mr.
Kerr. Ms. Kerr was ordered to pay the remaining indebtedness of about $2,000 on the automobile,
while Mr. Kerr was ordered to pay about $13,000 in credit card debt that he had mainly incurred after
the parties’ separation. A collection of tools accumulated over the years by Mr. Kerr was awarded
to Ms. Kerr. The circumstances of the personal property awards are discussed in the next section
of this opinion.

        Mr. and Ms. Kerr were awarded joint legal custody of Dustin, with physical custody of the
child alternating between them. The trial judge denied Ms. Kerr’s request for sole custody, because
she found that Ms. Kerr had consistently tried to exclude Mr. Kerr from their son’s life during the
parties’ separation, and the judge was afraid that she would continue to do so, if given the
opportunity. The judge also rebuked Ms. Kerr for several incidents where her inattentiveness put
Dustin’s well-being at risk. The court’s order gave Ms. Kerr physical custody of Dustin from
September through May each year, and Mr. Kerr custody in June, July and August, with regular
scheduled visitation for the non-custodial parent during the periods when the other parent has
custody.

       In accordance with the child support guidelines, Mr. Kerr was ordered to pay his wife
$96.31/week in child support during her custodial period, and she was ordered to pay him
$79.80/week in child support during Mr. Kerr’s custodial period. Health insurance for the child was
to be maintained through an arrangement to which both parents contributed. The court found that
Ms. Kerr did not suffer from a relative economic disadvantage when compared to Mr. Kerr, and
declined to award any alimony to her. This appeal followed.

                                      II. PROPERTY DIVISION

        The trial court is obligated to equitably divide the marital property in a divorce case, without
regard to fault. Tenn. Code. Ann. § 36-4-121(a)(1). The court has wide discretion in determining
what is equitable in a given case. Batson v. Batson, 769 S.W.2d 849 (Tenn. Ct. App. l988). The trial


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court’s division of the marital estate is entitled to great weight on appeal, Edwards v. Edwards, 501
S.W.2d 283 (Tenn. Ct. App. 1973), and should be presumed to be proper unless the evidence
preponderates otherwise. Lancaster v. Lancaster, 671 S.W.2d 501 (Tenn. Ct. App. 1984).

       In exercising its discretion, the trial court must weigh the factors set forth in Tenn. Code.
Ann. § 36-4-121(c). These are:

                (1) The duration of the marriage;
                (2) The age, physical and mental health, vocational skills, employability,
       earning capacity, estate, financial liabilities and financial needs of each of the parties;
                (3) The tangible or intangible contribution by one (1) party to the education,
       training or increased earning power of the other party;
                (4) The relative ability of each party for future acquisitions of capital assets
       and income;
                (5) The contribution of each party to the acquisition, preservation,
       appreciation, depreciation or dissipation of the marital or separate property, including
       the contribution of a party to the marriage as homemaker, wage earner or parent, with
       the contribution of a party as homemaker or wage earner to be given the same weight
       if each party has fulfilled its role;
                (6) The value of the separate property of each party;
                (7) The estate of each party at the time of the marriage;
                (8) The economic circumstances of each party at the time the division of
       property is to become effective;
                (9) The tax consequences to each party, costs associated with the reasonably
       foreseeable sale of the asset, and other reasonably foreseeable expenses associated
       with the asset;
                (10) The amount of social security benefits available to each spouse; and
                (11) Such other factors as are necessary to consider the equities between the
       parties.

        Ms. Kerr argues on appeal that the trial court’s division of the marital property was
inequitable. In particular, she complains that the trial court failed to take into account Mr. Kerr’s
dissipation of marital assets, and that the award to him of the car that she customarily drove was
unfair. We believe, however, that the trial court did in fact take Mr. Kerr’s dissipation of assets into
account, although not in the way that Ms. Kerr would prefer, and that the award of the car was
appropriate under the circumstances.

       Ms. Kerr claimed that Mr. Kerr dissipated about $10,000 in financial assets during the period
when he lived with Ms. Parker. Through the testimony of Ms. Parker and the production of bank
records, the appellant proved that Mr. Kerr paid $995 per month in rent for himself and Ms. Parker;
that Ms. Parker wrote checks against Mr. Kerr’s account by signing his name; and that Ms. Parker
had very little income of her own. Ms. Parker testified that she deposited money from her savings
into Mr. Kerr’s account, but did not know how much.


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        The trial court found that Mr. Kerr was responsible for allowing Ms. Parker to dissipate
marital assets, and stated that it would accordingly balance the loss to the marital estate by adjusting
the amount he was entitled to receive from the sale of the marital home. As we noted above, the trial
court ordered the equity in the marital home to be divided evenly between the parties. The court
found, however, that Mr. Kerr had liquidated stock he owned, and contributed about $15,000 from
those pre-marital assets to the down payment on the marital home. The court implied that if it were
not for the dissipation of marital funds, he would be entitled to a greater share of the equity in the
home than his wife.

        The appellant argued that Mr. Kerr’s contribution to the down payment should not have been
considered, because the purchase of the home caused a transmutation of his separate property into
marital property, in accordance with a line of cases including McClellan v. McClellan, 873 S.W.2d
350 (Tenn. Ct. App. 1993), and Batson v. Batson, 769 S.W.2d 849 (Tenn. Ct. App. l988). The trial
court agreed that the home was marital property. However, it also correctly held that its obligation
was to divide all the marital property equitably, even if not necessarily equally.

        In light of the brief duration of the marriage, Tenn. Code. Ann. § 36-4-121(c)(1) and the
separate property that Mr. Kerr brought into the marriage, Tenn. Code. Ann. § 36-4-121(c)(7), we
do not believe that the trial court abused its discretion by setting off Mr. Kerr’s dissipation of some
of the marital assets against his contribution to the marital estate from his separate funds, resulting
in an equal division of the equity in the home.

        The court reasoned that a similar set-off was appropriate when it awarded the Ford
Thunderbird to the husband. Mr. Kerr had an extensive collection of Snap-On professional
mechanic’s tools that he had accumulated over the years. He testified that after the parties separated,
he went to the marital home with his attorney to collect his personal property, and among other
things, they picked up four large toolboxes. He claimed that when he returned to his father’s house
and opened the toolboxes, he discovered that they were empty.

        Ms. Kerr denied having any knowledge of where the tools were, and implied that either Mr.
Kerr had them, or that he had never owned nearly as many tools as he claimed. Mr. Kerr testified
that the tools were worth $14,000, and produced an extensive and detailed inventory that listed each
tool and its value. Ms. Kerr testified that she thought the tools were worth no more than $1,500.
The trial court made no specific findings as to the whereabouts or the value of the tools, but the
judge’s remarks clearly show that she did not believe Ms. Kerr’s testimony.

        There was also a difference of opinion about the value of the Thunderbird. Ms. Kerr testified
that she thought it was worth $2,000, and Mr. Kerr testified to a value of $10,000. The trial court
awarded the tools to Ms. Kerr and the car to Mr. Kerr. We note that whether we accept Mr. Kerr’s
estimates of the value of both items of property, or Ms. Kerr’s estimates, the value of the tools and
of the car appear to be roughly equal. In fact, despite appellant’s arguments to the contrary, the
division of the marital estate as a whole is roughly equal. More importantly, it appears to be
equitable, considering the factors set out in Tenn. Code. Ann. § 36-4-121(c).


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                                  III. REHABILITATIVE ALIMONY

        Our legislature has established rehabilitative alimony as a separate class of spousal support,
distinct from alimony in solido and periodic alimony, and expressed its preference for rehabilitative
support over long-term support wherever appropriate. Tenn. Code. Ann. § 36-5-101 reads in part
as follows:

               (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
       ....

        It appears from this passage that relative economic disadvantage between the spouses is a
threshold requirement for any kind of spousal support. The factors in subsection (d) referred to
above include some that are directly related to the economic situation of the parties, such as their
relative earning capacities, education, training, mental and physical health, and some that are not,
such as the duration of the marriage and the relative fault of the parties. Our courts have consistently
stated that the most important factors to consider in determining spousal support are the needs of the
disadvantaged spouse and the obligor spouse’s ability to pay. Anderton v. Anderton, 988 S.W.2d
675 (Tenn. Ct. App. 1998); Varley v. Varley, 934 S.W.2d 659 (Tenn. Ct. App. 1996); Lancaster v.
Lancaster, 671 S.W.2d 501 (Tenn. Ct. App. 1984).

       During the course of the marriage, Mr. Kerr worked for Det Distributing, selling beer on a
commission basis from a refrigerated truck. He worked long hours, twenty to thirty hours over a
normal forty hour work week, generating an income of about $40,000 per year. Much of the job
involved heavy lifting, which he claimed was undermining his health. During the course of the
proceedings, Mr. Kerr changed jobs. His new job driving a grocery delivery truck allows him to
work a forty hour week, and generates an income of about $26,000 per year.

        At the time of trial, Ms. Kerr had been working for the Tennessee Orthopaedics Alliance for
almost two years, doing clerical and receptionist work. She had earned three raises during that time,
going from $8.00 an hour to $9.76. We calculate that by working forty hours per week, she can
generate a yearly income of $20,300. This is less than Mr. Kerr earns, but not substantially less.

        Ms. Kerr asked the court to grant her $600 per month as rehabilitative alimony for three
years, the time she estimated it would take for her to earn an assistant physical therapist degree,
which she claimed would dramatically increase her earning ability. The trial court declined to award
her any alimony, finding “no economic advantage to Mr. Kerr.”



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        The appellant argues that Mr. Kerr has by far the greater earning capacity, as shown by his
previous income of $40,000 per year, and implies that he changed jobs in order to reduce his
potential obligation. It appears to us, however, that his previous income was only earned at great
cost to his personal life and his physical well-being. We also approve of the trial court’s
determination that Mr. Kerr has an important role to play in his son’s life, a role that is incompatible
with the extensive overtime that he previously worked. There is no evidence in the record to indicate
that Mr. Kerr could increase his income without also increasing his hours.

        We note that both parties are relatively young (Mr. Kerr was 30 at the time of the final
hearing, and Ms. Kerr was 28); that there was no evidence that either of them is in poor health; that
neither has a significant advantage over the other in terms of education and training; and that neither
appears to have any significant resources beyond the marital assets divided by the court.

       It probably is a good idea for Ms. Kerr to obtain additional education to improve her earning
capacity. We do not believe, however, that Mr. Kerr has the ability to pay the alimony that she
requests. In light of the parties’ relatively equal economic situation, and the brief duration of their
marriage, we also do not believe that he should be obligated to fund that education.

                                                  IV.

       The decree of the trial court is affirmed. Remand this cause to the Chancery Court of
Robertson County for further proceedings consistent with this opinion. Tax the costs on appeal to
the appellant, Christina A. Kerr.



                                               _________________________________________
                                               BEN H. CANTRELL, PRESIDING JUDGE, M.S.




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