                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   January 6, 2003 Session

                 MICHAEL S. SANDERS v. DIANE H. SANDERS

                     Appeal from the Chancery Court for Sumner County
                        No. 2000D-473    Tom E. Gray, Chancellor



                      No. M2001-02694-COA-R3-CV - Filed May 6, 2003


The Chancery Court of Sumner County declared the parties divorced, divided the marital property,
and awarded the wife rehabilitative alimony. On appeal the wife argues that since her conservator
executed her counterclaim for divorce, the court had no jurisdiction to award her a divorce. She also
contests the amount and duration of the alimony awarded to her. We affirm the divorce, but we
reverse the award for rehabilitative alimony and modify the award to alimony in futuro. We remand
for a hearing as to the amount.

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

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN , J. and
STELLA L. HARGROVE, SP . J., joined.

Vicky V. Klein, Madison, Tennessee, for the appellant, Diane H. Sanders.

Larry Hayes, Jr., Nashville, Tennessee, for the appellee, Michael S. Sanders.

                                            OPINION

                                                 I.

        Michael S. Sanders filed a complaint for divorce from Diane H. Sanders, his wife of thirty-
two years, on August 8, 2000. His grounds, included in the complaint and an amended complaint,
included irreconcilable differences and inappropriate marital conduct. Although Mr. Sanders
originally obtained a default judgment against Ms. Sanders, that judgment was set aside and she was
allowed to answer. On June 8, 2001, she filed an answer and counter-complaint alleging the same
grounds set out in Mr. Sanders’ complaint. The pleading was sworn to by Ms. Sanders’ conservator
and her guardian ad litem. The pleading also bears a certificate of Ms. Sanders’ attorney ad litem
that a copy had been mailed to Mr. Sanders’ attorney.
       After a final hearing the trial judge declared the parties divorced pursuant to Tenn. Code Ann.
§ 36-4-129 and divided the marital property. The court also awarded Ms. Sanders rehabilitative
alimony of $900 per month for a period of sixty months.

                                                    II.

        In Ms. Sanders’ first issue on appeal, she argues that the court lacked jurisdiction to award
her a divorce because her counterclaim was verified by her conservator and not by her. This
argument is based on the requirement in Tenn. Code Ann. § 36-4-107(a) that a complaint for divorce
shall be verified by an affidavit upon oath or affirmation that the facts stated in the complaint are true
to the best of the complainant’s knowledge and belief for the causes mentioned in the complaint.
The courts have held that this requirement is essential to the court’s jurisdiction to award the divorce,
Carter v. Carter, 191 S.W.2d 451 (Tenn. Ct. App. 1944), and that the oath is personal to the
complainant and cannot be given by some other person in a representative capacity. Turner v. Bell,
279 S.W.2d 71 (Tenn. 1955).

         We think this argument overlooks the fact that the court had already obtained jurisdiction
over the parties’ status, by virtue of Mr. Sanders’ complaint and the parties domicile here. “An
action for a divorce is essentially a proceeding in rem, in the sense that it determines marital status.”
See 24 Am. Jur. 2d Divorce and Separation § 7. In recognition of this general power of the courts
to determine the status of its domiciliaries and with the passing of the era when divorce carried with
it a social stigma, the General Assembly has relaxed the reasons why the marriage may be dissolved
– even to the point where a marriage may be dissolved by agreement. See Tenn. Code Ann. § 36-4-
101(14), 103(a)(2), 119(a). Also upon proof of any ground for divorce in Tenn. Code Ann. § 36-4-
101, the General Assembly has empowered the court to “grant a divorce to the party who was less
at fault or, if either or both parties are entitled to a divorce, declare the parties to be divorced rather
than awarding a divorce to either party alone.” Tenn. Code Ann. § 36-4-129(b).

         As this court explained in Earls v. Earls, 42 S.W.3d 877 (Tenn. Ct. App. 2000), the court
may declare the parties divorced if either or both engaged in a repeated course of conduct that made
continued cohabitation unacceptable. Or the parties may simply stipulate that one or both of the
parties has grounds for divorce. Tenn. Code Ann. § 36-4-129(a). When this case was called for trial
in the trial court the following exchange took place:

                THE COURT: Sanders v. Sanders. Any preliminary matters?
                MR. HAYES: I don’t think so, Judge. Judge, I’m Larry Hayes of the
        Nashville Bar. I represent the plaintiff, Mike Sanders. Mr. Mike Edwards represents
        the defendant, Diane Sanders. Since we were here – I believe less than a month ago
        – on a temporary support matter, counsel have agreed to waive opening statements
        and get right to the proof, if that’s all right with Your Honor.
                THE COURT: That’ll be fine. I really was trying to determine whether or not
        there was any stipulations and if these parties could be declared divorced or does
        your client not want that, Mr. Edwards?


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               MR. EDWARDS: No, Judge. She wants and she needs to be divorced.
               THE COURT: She wants a divorce?
               MR. EDWARDS: Yes, sir.
               THE COURT: Any problem stipulating –
               MR. EDWARDS: No problem at all, Judge. Well, you know, I’m at kind of
       a disadvantage because I’m not sure she’s competent to convey to me what she wants
       or doesn’t want. But the conversation that I had with her – I mean, in her driveway
       one day she indicated that she did want the divorce so I’m basing it on that. I think
       it would be best for Diane.
               MR. HAYES: I don’t think the proof in this case on fault would factor into
       the Court’s decision on any issue, really.
               THE COURT: I know it won’t on the marital estate. I don’t remember any
       cases where fault has even been factored in where there’s been an award of spousal
       support or attorney’s fees.
               ....
               MR. EDWARDS: Well, I’ve done this long enough in front of you, I know
       it doesn’t form a basis of punishment or whatever. I’ve deposed Mr. Sanders. I think
       I have sufficient grounds for my client to be granted a divorce but it serves no
       purpose legal-wise.
               THE COURT: If the parties are in agreement, the Court will just declare the
       parties divorced by absolute divorce under T.C.A. 36-4-129 and restore the parties
       to the rights and privileges of single persons.

       We think this exchange shows, at the least, that the parties stipulated that Ms. Sanders had
grounds for divorce. Therefore, Tenn. Code Ann. § 36-4-129 gave the trial court the authority to
declare them divorced.

                                                 III.

         Ms. Sanders contests the amount and duration of the alimony awarded to her. The trial court
ordered Mr. Sanders to pay her $900 per month for sixty months as rehabilitative support. While
the amount and duration of alimony to be awarded in any particular case is a matter for the discretion
of the court, Burlew v. Burlew, 40 S.W.3d 465 (Tenn. 2001), the General Assembly has included a
list of factors to be considered, see Tenn. Code Ann. § 36-5-101(d), and the courts have said that
where rehabilitation is not feasible, the award should be made on a long-term basis. Anderton v.
Anderton, 988 S.W.2d 675 (Tenn. Ct. App. 1998).

        There is no dispute that Ms. Sanders is currently incapacitated. The trial judge did not make
any findings about the potential for her recovery and the parties do not address this factor in their
briefs. They seem to assume her condition is permanent. If that is true, it raises the question of what
would be accomplished by sixty months of rehabilitative support. The essential finding for an award
of rehabilitative support is that the disadvantaged spouse is “capable of rehabilitation.” See
Robertson v. Robertson, 76 S.W.3d 337 (Tenn. 2002). In view of the lack of evidence in the record


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that Ms. Sanders is capable of rehabilitation we think long-term support would be more appropriate
in this case.

         As to the amount of the monthly support, we also set aside the $900 award and remand for
a determination of the proper amount of support based on the current conditions. It appears that the
trial judge assumed that Ms. Sanders could earn $1,000 in interest each month and could draw
approximately $1,300 per month in Social Security benefits. Her expense statement also included
more than $500 per month in transportation costs. Since there are better numbers available now
based on actual experience, we think the award should be reconsidered.

         We reverse the award of rehabilitative alimony and remand for a fresh determination of the
proper amount of alimony in futuro. An alimony in futuro award, of course, remains in the control
of the trial court. See Waddey v. Waddey, 6 S.W.3d 230 (Tenn. 1999). We tax the costs on appeal
to the parties equally.



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




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