                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                       July 2000 Session

             NATHANIEL SHELBOURNE v. JULIA SHELBOURNE

                     Appeal from the Circuit Court for Davidson County
                         No. 98D-1916    Muriel Robinson, Judge



                    No. M1999-02557-COA-R3-CV - Filed August 22, 2000


The trial court granted the wife a divorce, awarded her custody of the parties’ minor child, divided
the marital property, and ordered the husband to pay rehabilitative alimony for two years. We affirm.

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

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

Clark Lee Shaw, Nashville, Tennessee, for the appellant, Nathaniel Shelbourne.

David O. Huff, Nashville, Tennessee, for the appellee, Julia Shelbourne.

                                            OPINION

                                   I. AN UNHAPPY MARRIAGE

         Nathaniel Shelbourne and Julia Lewis married on November 27, 1990. Both had children
from earlier marriages. A daughter, Kieara Renee Shelbourne, was born to the parties on February
4, 1991. Their marriage was not a happy one. Mr. Shelbourne apparently had a drinking problem,
and the parties engaged in violent arguments in which they called each other vile names, threw
things, and struck each other. The items mentioned as having been thrown included a glass, a
skillet, a pot, and a radio. Although the husband claimed that his wife usually initiated physical
contact, she suffered the worst injuries, including two black eyes and having her front teeth knocked
out.

       In March of 1998, Nathaniel Shelbourne left the marital home and moved in with his brother.
On June 23, 1998, he filed a complaint for absolute divorce. The wife filed an answer and a counter-
complaint for absolute divorce on July 8, 1998. The parties were the only witnesses to testify at the
hearing of the case, which was conducted on July 6, 1999.
        The trial court found both parties to be at fault, but determined the fault of Mr. Shelbourne
to be greater than that of his wife, and accordingly awarded the divorce to the Mrs. Shelbourne on
the ground of inappropriate marital conduct. See Tenn. Code. Ann. § 36-4-129(b). The court also
awarded her custody of Kieara, with reasonable visitation for the father. He was ordered to pay child
support of $138.60 per week.

        The marital estate had included three pieces of real property located in Nashville. The wife
was awarded the marital home, located at 2626 Bethwood Terrace. A duplex at Highland Terrace
that Mr. Shelbourne had purchased during the marriage was ordered to be sold, with the proceeds
to be divided equally between the parties. The husband had also bought a house on North Fifth
Street during the marriage, and sold it while the divorce was pending. He put net proceeds of
$30,000 into a safety deposit box. The court awarded this entire amount to the husband.

       The court also awarded the wife one-half of the thrift savings plan that the husband had
accumulated during the marriage, and one-half of the military pension that he had earned during the
same period. Finally, the court ordered Mr. Shelbourne to pay his wife rehabilitative alimony of
$250 per month for two years, and attorney fees of $3,150.

                                   II. THE QUESTION OF FAULT

        The emphasis in this appeal is primarily on the property division. However, Mr. Shelbourne
also argues that the trial court erred in finding that his fault was greater than that of his wife’s and
in using this finding as the basis for awarding the divorce to Mrs. Shelbourne, and for granting her
sole custody over their daughter.

        Findings of fact by the trial court are entitled to a presumption of correctness, and will not
be reversed by this court unless the evidence predominates otherwise. Tenn. R. Civ. P. 13(d). The
court’s finding that Mr. Shelbourne’s fault was greater than that of his wife is supported by graphic
evidence of the injuries he inflicted on her, by his guilty pleas and convictions on two charges of
assault against her, and by her testimony as to his drinking problems.

        Mr. Shelbourne argues that Mrs. Shelbourne initiated their fights by throwing things at him,
and implies that he was just responding to provocation, or that she was injured when he was merely
trying to defend himself. For example, in the incident in which her front teeth were knocked out,
he claims that she was trying to pick up a radio to throw at him, and that “when I grabbed the radio
the radio hit her in the mouth.”

       We do not wish to minimize the damage Mrs. Shelbourne has caused to herself and to the
marriage by her lack of self-control when she became angry, and by the violence she offered to her
husband by throwing things. The evidence shows however, that Mr. Shelbourne also called his wife
names and threw things at her, and that his violent actions, whether in response to provocation or
otherwise, resulted in physical injuries to Mrs. Shelbourne. It is apparent to us that as the bigger and



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stronger party, Mr. Shelbourne had the greater obligation to show restraint in order to avoid causing
injuries.

       Further, although the testimony of the parties differs somewhat on this matter, it also appears
that Mr. Shelbourne had a drinking problem, and often stayed out all night after work instead of
coming home, and that this was what enraged Mrs. Shelbourne. After considering all the evidence,
we do not find that the evidence preponderates against the trial court’s finding of fault.

        When both parties are at fault for the failure of a marriage, the trial court may either declare
the parties to be divorced, or may grant the divorce to the party who was less at fault. Tenn. Code.
Ann. § 36-4-129(b). Such a choice is in the sound discretion of the trial court. We do not find that
the court abused its discretion in granting the divorce to the wife.

                                         III. CHILD CUSTODY

        Mr. Shelbourne asked in his complaint that the parties be granted joint custody of Kieara,
with Mrs. Shelbourne to receive physical custody. He argues on appeal that this would have been
the better disposition of the custody question, because despite any deficiencies he may have had as
a husband, Mrs. Shelbourne admitted that he was a good father.

        Awards of joint custody are authorized by statute, see Tenn. Code. Ann. § 36-5-101, but they
are generally disfavored by the courts, in part because individuals who are unable to remain married
usually find it difficult to agree upon the child-rearing decisions that parents must inevitably make.
See Dodd v. Dodd, 737 S.W.2d 286, 289 (Tenn. Ct. App. 1987), Malone v. Malone, 842 S.W.2d 621
(Tenn. Ct. App. 1992).

       In the present case, neither party challenged the other’s fitness for parental responsibilities,
and they both apparently agreed that primary custody was to remain with the mother. It was
therefore a matter for the discretion of the trial court to determine whether to decree that the mother’s
custody be sole, with reasonable visitation by the father, or primary, with joint responsibility
exercised by the father. As a practical matter, these can be almost identical, except that with joint
custody there is a greater opportunity for the father to participate in (or interfere with) child-rearing
decisions. We do not believe the trial court abused its discretion by giving sole custody to the
mother.

                                    IV. THE MARITAL PROPERTY

        Mr. Shelbourne objects strenuously to the manner in which the trial court divided the marital
property. Rather than attacking the actual division directly, however, the appellant argues that the
trial court erred in failing to make explicit findings of fact in regard to the value of the real property.
He thus contends that there is no basis upon which we can determine whether the division was
equitable, and he urges us to remand this case to the trial court for further factual findings. While
this court acknowledges the usefulness of such explicit findings when we review decrees ordering


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property division, it appears to us that in this case we can adequately review the trial court’s order
without such findings.

        The trial court is charged with reaching an equitable division of the marital property without
regard to fault. Tenn. Code. Ann. § 36-4-121(a). An equitable division is not necessarily an equal
one. Barnhill v. Barnhill, 826 S.W.2d 443 (Tenn. Ct. App. 1991). However in this case, because
of the duration of the marriage, the size of the marital estate, the contribution of both parties to the
acquisition, preservation and appreciation of the property at issue, and the relative inequality in their
earning capacities, the equities require a division of the property that is at least roughly equal. See
Tenn. Code. Ann. § 36-4-121(c).

        The trial court awarded the wife exactly half of the savings and military retirement benefits
acquired by the husband during the marriage (the wife had no savings or retirement benefits of her
own). The proof in the record also indicates that the trial court made an equitable and roughly equal
division of the real property. That proof includes the testimony of both parties, as well as Multi-
Listing Service (MLS) sheets prepared by realtors in 1998 when Mr. Shelbourne put all three
properties up for sale.

        The proof showed that the marital home had been acquired by Mr. Shelbourne in 1986, prior
to his marriage, but that he and Mrs. Shelbourne both worked long hours to improve it, and had
added a two-car garage, a central air-conditioning system, a paved driveway and gas logs. Mr.
Shelbourne paid about $43,000 for the house in 1986. He acknowledged that the improvements
made by both parties had increased its value, which he testified to be around $55,000 (The MLS had
marked it for sale at $79,900). At the time of divorce, the balance on the mortgage was $41,000.

        Although property acquired prior to marriage is considered to be the separate property of the
acquiring party, any increase in the value of the separate property that occurs during the course of
the marriage is considered marital property if “each party substantially contributed to its preservation
and appreciation . . . .” Tenn. Code. Ann. § 36-4-121(b). In this case, it appears that most of the
equity presently existing in the marital home was created by both parties during the course of their
marriage, and that the trial court was entitled to treat it as marital property.

        The other properties were acquired during the parties’ marriage, and the evidence shows that
they both worked hard at renovating and repairing them. Mr. Shelbourne testified that the value of
the duplex at Highland Terrace was between $50,000 and $55,000. The MLS listing recites a price
of $59,900, and a mortgage balance of $23,000. Since the trial court ordered the property sold, and
the net proceeds divided equally between the parties, the exact value of the property is not really
necessary to our inquiry.

       As we stated earlier, Mr. Shelbourne sold the property on North Fifth Street while the divorce
was pending. After paying off the mortgage and other costs, he netted $38,000. He used about
$8,000 to pay taxes, and placed the remainder in a safety deposit box. The trial court awarded this
sum to him. Thus, of the three properties the parties owned and worked on during their marriage,


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the wife got the benefit of one, the husband of another, and the benefit of the third was equally
divided between them. We can find no fault in the trial court’s division of the marital property.

                                           V. ALIMONY

         The trial court awarded Mrs. Shelbourne rehabilitative alimony of $250 per month, to be paid
for two years. Mr. Shelbourne points out on appeal that neither party mentioned alimony during the
trial of the case, and argues that there is an insufficient foundation in the record for the court to
evaluate the numerous factors that go into an alimony determination. See Tenn. Code. Ann. § 36-5-
101(d).

        However, Mrs. Shelbourne did ask for alimony of $500 per month in her counter-complaint
for divorce, and as this court has stated on numerous occasions, the dominant factors in determining
spousal support are the needs of the spouse to whom support is awarded, and the ability of the other
spouse to pay. Hazard v. Hazard, 833 S.W.2d 911 (Tenn. Ct. App. 1991); Lancaster v. Lancaster,
671 S.W.2d 501 (Tenn. Ct. App. 1984); Aleshire v. Aleshire, 642 S.W.2d 729 (Tenn. Ct. App. 1981).

        The proof showed that Mr. Shelbourne was a postal employee with wages from his job of
almost $45,000 annually. Mrs. Shelbourne works nearly full-time at Genesco, and earns $7.45 an
hour. The monthly income and expense statements of both parties are in the record. They indicate
that Mr. Shelbourne does have the capacity to pay a moderate amount of alimony out of his income,
and that Mrs. Shelbourne’s expenses exceed her income. It does not appear to us that the trial court
abused its discretion by ordering Mr. Shelbourne to pay alimony.

                                                VI.

       We affirm the judgment of the trial court. Remand this cause to the Circuit Court of
Davidson County for further proceedings consistent with this opinion. Tax the costs on appeal to
the appellant.



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




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