                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE

             CLARK MATTHEW EARLS v. SHIRLEY ANN EARLS

                 Direct Appeal from the Circuit Court for Williamson County
                           No. II-98458    Russ Heldman, Judge



                    No. M1999-00035-COA-R3-CV - Decided May 31, 2000



This appeal involves a marriage irretrievably broken by a catastrophic injury to the wife. The parties
separated after attempting to cope with the wife’s condition for over one year, and the husband filed
for an irreconcilable differences divorce in the Circuit Court for Williamson County. The wife
agreed that the parties had irreconcilable differences but resisted the divorce because she desired to
continue being covered by the husband’s employer-provided group medical insurance. The trial
court heard the evidence without a jury and declined to grant the husband a divorce or to declare the
parties divorced. The trial court also awarded custody of the child to the wife despite the parties’
agreement and the lack of evidence that the wife was physically and psychologically able to shoulder
the responsibilities of being the custodial parent. The husband has appealed. We have determined
that the record contains ample evidence to declare these parties divorced in accordance with Tenn.
Code Ann. § 36-4-129(b) (Supp. 1999). We have also determined that the evidence does not support
the trial court’s decision to award custody of the parties’ child to the wife and that the trial court’s
award of spousal support to the wife should be modified.

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

KOCH , J. delivered the opinion of the court in which COTTRELL , J. joined. COTTRELL , J. filed a
concurring opinion. CAIN , J. filed a dissenting opinion.

Thomas F. Bloom and Robyn Ryan, Nashville, Tennessee, for the appellant, Clark Matthew Earls.

R. E. Lee Davies, Franklin, Tennessee, for the appellee, Shirley Ann Earls.


                                              OPINION

       Clark Matthews Earls and Shirley Ann Holman Earls met when they were approximately
twenty years old. Both worked, and Mr. Earls also boxed professionally. Their son was born in July
1991, and they were married two years later in July 1993. While Ms. Earls had been married
previously, this was Mr. Earls’ first marriage. The parties returned to Williamson County in 1996
after Mr. Earls failed to establish himself as a boxer in Las Vegas. Following their return, Ms. Earls
managed an apartment complex, and Mr. Earls held part-time jobs at Service Merchandise Company
and United Parcel Service.

        Ms. Earls suffered an unexpected and catastrophic injury in March 1997 when an aneurism
near her spine burst. She was left a quadriplegic and faced a long, difficult period of rehabilitation
to regain even partial use of her arms and legs and to provide even a minimal level of self-
sufficiency. Mr. Earls took a leave of absence from work in order to help Ms. Earls with her
rehabilitation. Mr. Earls’ parents also moved to Middle Tennessee for eleven months to help their
son, daughter-in-law, and grandson. When Ms. Earls was released from the rehabilitation center in
June 1997, the parties moved to a mobile home in Wartrace because Ms. Earls wanted to be closer
to her father. Mr. Earls agreed to move even though it significantly increased his commute to work.

        The rehabilitation process was slow and difficult. For their own reasons, each party became
discouraged and depressed. Mr. Earls was frustrated because he believed that Ms. Earls was not
pursuing her rehabilitation as vigorously as she could, and Ms. Earls became depressed and angry
about the cruel blow fate had dealt her. Unfortunately, each party became the target of the other’s
frustration and anger. Eventually, the pressure and strain drove the parties apart. They began to
argue frequently and to call each other names. Eventually, the tension in the household became so
intense that Mr. Earls’ parents decided to move back to their home in Cleveland, Tennessee rather
than endure the constant fighting between their son and daughter-in-law.

        As time passed, the parties became less communicative and more distant. The constant
pressure and tension extinguished their feelings for each other. From Ms. Earls’ point of view, Mr.
Earls kept providing her care, but he was only providing her “the basics, you know, here’s your food;
here’s your water; here’s your pill; here’s things that you need.” From Mr. Earls’ point of view, Ms.
Earls continued to be angry and resentful about her injury and stopped expressing any affection for
him or appreciation for his efforts to assist her. As Mr. Earls described it, Ms. Earls was “very cold
and bitter,” and “all I could do is to be there for her.”

        Approximately fifteen months after Ms. Earls’ injury, Mr. Earls told her that he had contacted
a lawyer and that he wanted a divorce. Ms. Earls did not disagree that their relationship was
irretrievably broken, and in early July 1998, she moved out of the handicapped accessible apartment
where they had moved and went to live with her mother and step-father. The parties agreed to an
irreconcilable differences divorce and, on July 16, 1998, signed a marital dissolution agreement. The
agreement provided that the parties would have joint custody but that the child would live
“primarily” with Mr. Earls. It also provided that Ms. Earls would not be required to pay child
support because Mr. Earls was receiving the child’s SSI payments stemming from Ms. Earls’
medical condition.

       Mr. Earls filed the irreconcilable differences divorce complaint on July 17, 1998. Ms. Earls
informed him that she no longer agreed to the terms in the marital dissolution agreement, and on


                                                -2-
August 5, 1998, she filed an answer and counterclaim. While she admitted that the parties had
“irreconcilable differences” that were “permanent,” she requested that the trial court declare the
marital dissolution agreement void because it had been procured through undue influence and duress.
She did not request a divorce of any sort, but she requested spousal support and a temporary
restraining order preventing Mr. Earls from removing her from his employer-provided medical
insurance and from concealing or dissipating marital assets. Mr. Earls denied the undue influence
and duress claims, and on December 14, 1998, filed an amended complaint seeking a divorce on the
ground of inappropriate marital conduct. Three days later, Ms. Earls denied the inappropriate marital
conduct allegation and responded, in accordance with Tenn. Code Ann. § 36-4-120(a) (Supp. 1999),
that any ill conduct on her part was caused by ill conduct on the part of Mr. Earls.

        The first day of trial occurred on March 10, 1999. By this time, Ms. Earls was still not
requesting a divorce of any sort but was requesting spousal support. Before the proof was taken, Ms.
Earls informed the court that the parties had agreed that Mr. Earls should have custody of the child
but also insisted that she should have the right to reopen the custody question whenever she thought
that she was sufficiently rehabilitated to take care of her son. The trial court responded to this
announcement by suggesting joint custody with Mr. Earls being the “residential parent.” When both
parties agreed to the suggestion, the trial court announced: “Then that would be the decree of the
court with respect to the custody issue.” With the custody issue seemingly resolved, neither party
presented the evidence normally associated with custody disputes.

        The trial reconvened on March 26, 1999, and the parties concluded presenting their evidence
and argument by noon. After deliberating for approximately two hours, the trial court returned to
the bench to deliver its ruling. First, the court announced that Mr. Earls had not proved by a
preponderance of the evidence that Ms. Earls had engaged in “cruel and inhuman treatment.”1 The
court also concluded that Ms. Earls’ “right of privacy . . . estops this court from going so far as to
finding any choice that she’s made with respect to her body to be cruel and inhuman treatment
towards Mr. Earls.” Then, turning to the question of custody, the court awarded sole custody of the
child to Ms. Earls because Mr. Earls’ relationship with Laura Moore “jeopardized the child in a
moral sense.” The court ordered Mr. Earls to pay Ms. Earls $570 per month in spousal support until
her death, $300 per month in child support, as well as all her accrued and future medical expenses
not covered by insurance. Finally, the court permanently enjoined Mr. Earls from “coming around
Laura Moore . . . to promote and protect the marriage relationship which exists and will exist in this
case until I’m reversed or something new comes before the [c]ourt.” On this appeal, Mr. Earls takes
issue with the trial court’s refusal to declare the parties divorced, its custody decision, its spousal and
child support orders, and with the blanket injunction against associating with Ms. Moore as long as
he was married.




        1
            The trial court commented “No way José has she done that as far as I’m concerned.”

                                                  -3-
                                                   I.
                         WHETHER THE PARTIES SHOULD BE DIVORCED

        The trial court, perceiving itself as the protector of the institution of marriage,2 declined to
divorce the parties on two grounds. First, it concluded that Mr. Earls failed to carry his burden of
proving the existence of one of the grounds for divorce in Tenn. Code Ann. § 36-4-101 (Supp. 1999).
Second, the trial court concluded that the parties should not be divorced because Ms. Earls would
“be more aggressive in pursuing reconciliation” once Mr. Earls’ divorce complaint was dismissed.
This reasoning demonstrates a fundamental misunderstanding of the divorce statutes and a fanciful
interpretation of the evidence.

                                                   A.

        For at least one hundred and fifty years, the courts of this state have been empowered to grant
divorces when a spouse engages in “cruel and inhuman treatment or conduct towards the spouse as
renders cohabitation unsafe and improper.” Tenn. Code Ann. § 36-4-101(11); Code of Tennessee
§ 2449(1) (1858). The courts’ view of the type of conduct that amounted to cruel and inhuman
treatment has changed over the years. For a long time, the type of treatment that was considered
cruel and inhuman enough to warrant a divorce consisted of “the willful, persistent causing of
unnecessary suffering, whether in realization or apprehension, whether of body or mind, in such a
way as to render cohabitation dangerous and unendurable.” Gardner v. Gardner, 104 Tenn. 410, 412,
58 S.W. 342, 343 (1900) overruled on other grounds, Jackson v. Jackson, 186 Tenn. 337, 342, 210
S.W.2d 332, 335 (1948); Russell v. Russell, 3 Tenn. App. 232, 245 (1926).

       The courts further limited the conduct that would support a divorce on the grounds of cruel
and inhuman treatment by pointing out that “[m]ere acerbity of temper, occasional reproaches, rude




        2
         Over a century ago, the courts believed that they were duty bound to uphold marriage as “the
most sacred of domestic relations.” DeArmond v. DeArmond, 92 Tenn. 40, 44, 20 S.W. 422, 423
(1892). This view has long since been replaced by the less moralistic and more human view that
when a marriage is irretrievably broken, both society at large and the parties themselves have “no
interest in perpetuating a status out of which no good can come and from which harm may result.”
Lingner v. Lingner, 165 Tenn. 525, 534, 56 S.W.2d 749, 752 (1933); see also Hamm v. Hamm, 30
Tenn. App. 122, 141-42, 204 S.W.2d 113, 121-22 (1947).

         The trial court mistakenly believes that the General Assembly revived this outmoded notion
in 1996 when it enacted Tenn. Code Ann. § 36-3-113 (1996). This statute was passed to shield
Tennessee from being required to recognize same-gender marriages performed in other states.
Accordingly, it extolls heterosexual marriage as the “fundamental building block of our society.”
It stops far short, however, of endorsing the notion that either individual or societal interests will be
advanced by condemning two persons to loveless marital unions.

                                                  -4-
language by the husband toward the wife, and even threats of violence where none is attempted,3 do
not constitute ground[s] for divorce under our statutes.” Watson v. Watson, 25 Tenn. App. 28, 34,
149 S.W.2d 953, 957 (1940). In those days, the courts required acts of “cold-blooded cruelty and
barbarity, on the part of husbands toward dutiful and innocent wives”4 in order to protect the
institution of marriage from the complaints of a wife who “permits herself to become very unhappy
and dissatisfied with her condition by magnifying the faults and indiscretions of her husband,
brooding over imaginary wrongs, or indulging in a feeling of opposition to that authority and control
which properly belongs to him, as head of the family.” Shell v. Shell, 34 Tenn. at 722.

        Those chauvinistic days have long since passed, and this court has marked their passing on
at least two occasions. First, in 1988, the Eastern Section held that conduct no longer must be
dangerous or unendurable to amount to cruel and inhuman treatment. In doing so, the court granted
a husband a divorce from a suicidal wife because “any series of misconduct which makes continued
cohabitation unacceptable is sufficient to meet the statutory requirement.” White v. White, Carroll
Eq. No. 3, 1988 WL 101253, at *1 (Tenn. Ct. App. Oct. 3, 1988) (No Tenn. R. App. P. 11
application filed). Four years later, after the General Assembly changed the “cruel and inhuman
treatment” ground to “inappropriate marital conduct,”5 the Western Section of this court, following
White v. White, upheld a divorce granted to a husband who had cared for his spouse during a long
illness. The court found that the wife’s conduct during the illness was “unacceptable” and had
caused the husband “mental anguish and distress.” Brown v. Brown, No. 02A01-9108-CV-00168,
1992 WL 5243, at *3 (Tenn. Ct. App. Jan. 16, 1992) (No Tenn. R. App. P. 11 application filed).

         The trial court in this case brushed Brown v. Brown aside because it did not agree with the
rationale of the decision.6 We choose to side with our colleagues. It is not the Court of Appeals but
the trial court who misperceives Tennessee’s current public policy regarding divorces based on the
ground of inappropriate marital conduct. Upon proof of any ground for divorce in Tenn. Code Ann.
§ 36-4-101, including inappropriate marital conduct, the General Assembly has empowered the
courts 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) (Supp. 1999). Accordingly, a Tennessee court should grant a


       3
        Today, this sort of conduct would be considered to be domestic abuse. See Tenn. Code Ann.
§ 36-3-601(1) (Supp. 1999).
       4
           Shell v. Shell, 34 Tenn. (2 Sneed) 716, 728-29 (1855).
       5
           See Tenn. Code Ann. § 36-4-101(11).
       6
         The trial court explained that “I do not agree with what the Court of Appeals said in that
case, because what the Court of Appeals did without the sanction of the Tennessee Supreme Court
changed what all the inappropriate marital conduct and/or cruel and inhuman treatment cases had
said for years just to say that cohabiting is not acceptable. Any series of misconduct flies in the face
of all the prior law.”

                                                 -5-
divorce from the bonds of matrimony whenever there is evidence of continued misconduct by one
or both spouses that makes continued cohabitation unacceptable.

                                                   B.

         It remains to be decided whether Mr. Earls has proved by a preponderance of the evidence
that between March 1997 and July 1998 either or both of the parties engaged in a repeated course
of conduct that made continued cohabitation unacceptable. This inquiry is rendered less difficult
because the parties have already decided for themselves – they have determined that cohabitation
is no longer acceptable to them because they have been living apart since July 1998. The evidence
in this case clearly demonstrates that both parties have engaged in conduct inappropriate in a marital
relationship. Accordingly, the evidence overwhelmingly preponderates against the trial court’s
conclusions that “nothing that Ms. Earls did . . . caused the break-up of the marriage” and that Ms.
Earls was “waiting for this lawsuit to go away” before pursuing a reconciliation more aggressively.


        The divorce question does not hinge on the fact that Ms. Earls was catastrophically injured
in March 1997. Everyone involved with this case recognizes that neither Ms. Earls nor Mr. Earls
is responsible for this misfortune. It does not even hinge upon Ms. Earls’ efforts to rehabilitate
herself or the progress of her rehabilitation despite the emphasis these matters received in the trial
court.7 The decision regarding the existence of grounds for divorce depends upon the parties’
conduct toward each other.

        While Ms. Earls had no control over the fact that she was injured, she did have control over
how she treated Mr. Earls. While it is understandable how she might be resentful and depressed
about her condition, she could have refrained from taking her anger out on Mr. Earls or from
throwing objects or from eventually becoming cold and bitter without expressions of affection or
gratitude for his efforts. By the same token, Mr. Earls could have kept his frustration and anger in
check. He too could have avoided the name-calling, the arguments, and the attitude that Ms. Earls


        7
         Both parties testified at some length about Ms. Earls’ rehabilitation. Initially, Ms. Earls
insisted that she did everything her healthcare givers told her to do, but later she conceded that she
stopped her rehabilitation program for a period of time, that she declined to use certain apparatuses,
and that she did not perform her home exercises. Mr. Earls also testified that Ms. Earls did not
aggressively pursue the self-help activities and devices available to her. The trial court eventually
decided that it was “estopped” to consider these facts because to do so would infringe on Ms. Earls’
right of privacy protected by the Constitution of Tennessee. While the trial court’s constitutional
analysis is flawed, its conclusion is correct. Even though considering this evidence does not have
constitutional overtones, the progress of Ms. Earls’ rehabilitation is irrelevant to the issue of grounds
for divorce except with regard to the conduct it may have caused the parties to engage in. Thus, Ms.
Earls did not engage in inappropriate marital conduct by not seeking to rehabilitate herself more
aggressively. However, both parties’ frustrations over her injury and rehabilitation may have caused
either or both of them to act in ways that were not appropriate for married couples.

                                                  -6-
was not trying hard enough to rehabilitate herself. As time passed, the parties’ rancor grew, and the
confrontations and arguments became more than isolated and infrequent incidents. The parties’
disagreements escalated to the point where Mr. Earls’ parents moved back home because they were
no longer able to tolerate the atmosphere in the Earls’ house. Thereafter, the rate of the
disintegration of the parties’ relationship accelerated as the burden of Ms. Earls’ medical condition
grew heavier and their external support diminished.

        By the time the case reached the courts, both Mr. Earls and Ms. Earls had conceded that their
differences were irreconcilable. Ms. Earls resisted Mr. Earls’ divorce and did not seek a divorce of
her own, not out of affection for Mr. Earls, but because she desired to avoid losing the health
insurance provided by Mr. Earls’ employer. Mr. Earls’ group medical benefits should not have
played a role in determining whether the parties should be divorced. While the courts should take
the parties’ desires into consideration, see Turner v. Bell, 198 Tenn. 232, 249, 279 S.W.2d 71, 79
(1955); Lingner v. Lingner, 165 Tenn. at 534, 56 S.W.2d at 752; Herchenroeder v. Herchenroeder,
28 Tenn. App. 696, 701, 192 S.W.2d 847, 849 (1945), they must ultimately render a decision called
for by the law and the facts. Under the facts of this case, Ms. Earls’ concern regarding her future
medical care should have been addressed in the division of the marital estate and in spousal support
and should not have influenced the decision on whether to grant a divorce.

        When the trial court heard this case in March 1999, the parties’ relationship had disintegrated
and their love and affection had been extinguished. They had been separated for ten months with
no effort or intention to rekindle their relationship. These circumstances had not changed when their
lawyers argued the case before this court. Accordingly, the trial court should have found that both
parties engaged in an inappropriate course of conduct over many months that rendered continued
cohabitation as husband and wife unacceptable. On remand, the trial court shall enter an order
declaring the parties divorced in accordance with Tenn. Code Ann. § 36-4-129(b).8

                                                II.
                                          CHILD CUSTODY

        The trial court initially acceded to the parties’ agreed-upon joint custody arrangement with
primary physical custody being awarded to Mr. Earls. However, the court changed its mind solely
because it decided that the child was “jeopardized in the moral sense” because of Mr. Earls’
relationship with Ms. Moore. Even taking into account the trial court’s invocation of the parties’
credibility, the totality of the evidence, considered objectively, indicates that the court has imbued


       8
         The trial court was evidently piqued at the testimony that Mr. Earls spat at his wife on one
occasion, that he had pressured her into signing the marital dissolution agreement, and that he had
kissed Ms. Moore on the mouth. Accordingly, the trial court stated that it would grant the divorce
to Ms. Earls had she been seeking one. We do not quibble with the trial court’s conclusion that Mr.
Earls’ “fault” exceeds Ms. Earls’ “fault.” But even conceding this point, the trial court could still
have declared the parties divorced under Tenn. Code Ann. § 36-4-129(b) because the record clearly
demonstrates that both parties contributed to the eventual disintegration of their marriage.

                                                 -7-
this relationship with more significance than it deserves. Accordingly, we reverse the trial court’s
decision awarding custody to Ms. Earls.

                                                   A.

       Decisions involving custody and visitation are among the most important decisions in a
divorce case. The courts must devise custody arrangements that promote the development of the
children’s relationship with both parents and interfere as little as possible with post-divorce family
decision-making. See Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn. 1996); Adelsperger v.
Adelsperger, 970 S.W.2d 482, 484 (Tenn. Ct. App. 1997). These decisions are not intended to
reward or to punish parents, see Turner v. Turner, 919 S.W.2d 340, 346 (Tenn. Ct. App. 1995);
Barnhill v. Barnhill, 826 S.W.2d 443, 453 (Tenn. Ct. App. 1991), and, in fact, the interests of the
parents are secondary to those of the children. See Lentz v. Lentz, 717 S.W.2d 876, 877 (Tenn.
1986). The goal of these decisions is to promote the children’s best interests by placing them in an
environment that will best serve their physical and emotional needs. See Luke v. Luke, 651 S.W.2d
219, 221 (Tenn. 1983).

        No hard and fast rules exist for determining which custody and visitation arrangement will
best serve a child’s needs. See Taylor v. Taylor, 849 S.W.2d 319, 327 (Tenn. 1993); Dantzler v.
Dantzler, 665 S.W.2d 385, 387 (Tenn. Ct. App. 1983). The inquiry is factually driven and requires
the courts to carefully weigh numerous considerations. See Nichols v. Nichols, 792 S.W.2d 713, 716
(Tenn. 1990); Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn. 1988); Bah v. Bah, 668 S.W.2d 663, 666
(Tenn. Ct. App. 1983); see also Tenn. Code Ann. § 36-6-106 (1996).

       The comparative fitness analysis is not intended to ascertain which parent has been perfect
because perfection is as unattainable in parenting as it is in life’s other activities. See Rice v. Rice,
983 S.W.2d 680, 682-83 (Tenn. Ct. App. 1998). Courts understand that parents have their own
unique virtues and vices. See Gaskill v. Gaskill, 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996).
Accordingly, Tennessee’s courts do not expect parents to prove that they are exemplary or that the
other parent is completely unfit. Instead, they carefully consider the conduct and circumstances of
the parents to determine which of the available custodians is comparatively more fit to have
permanent custody of the child. See Julian v. Julian, No. M1997-00236-COA-R3-CV, 2000 WL
348317, *6 (Tenn. Ct. App. Apr. 4, 2000) (No Tenn. R. App. P. 11 application filed).

        Since stability is important to any child’s well-being, the courts have emphasized the
importance of continuity of placement in custody and visitation cases. See Taylor v. Taylor, 849
S.W.2d at 328; Contreras v. Ward, 831 S.W.2d 288, 290 (Tenn. Ct. App. 1991). Continuity,
however, does not trump all other considerations. Depending on the facts, a parent who has been
a child’s primary caregiver may not necessarily be comparatively more fit than the other parent to
have permanent custody of the child.

      Custody and visitation determinations often hinge on subtle factors, including the parents’
demeanor and credibility during the divorce proceedings themselves. Accordingly, appellate courts


                                                  -8-
are reluctant to second-guess a trial court’s decisions. Trial courts must be able to exercise broad
discretion in these matters, but they still must base their decisions on the proof and upon the
appropriate application of the applicable principles of law. See D v. K, 917 S.W.2d 682, 685 (Tenn.
Ct. App. 1995). Thus, we review these decisions de novo on the record with a presumption that the
trial court’s findings of fact are correct unless the evidence preponderates otherwise. See Nichols
v. Nichols, 792 S.W.2d at 716; Doles v. Doles, 848 S.W.2d 656, 661 (Tenn. Ct. App. 1992).

                                                  B.

        The parties had already determined for themselves where their child’s best interests lay. They
knew that Ms. Earls could not care for the child on her own, and so they agreed that they should have
joint custody with Mr. Earls being the custodial parent. They also agreed upon liberal visitation for
Ms. Earls. They understood that this arrangement would require Mr. Earls to obtain help because
he was continuing to hold down two jobs. Mr. Earls received this assistance from his mother and
from Ms. Moore, a woman introduced by a mutual acquaintance following the parties’ separation.
Ms. Moore worked as a waitress in a Steak ‘N Shake restaurant and had a son the same age as the
parties’ son. Ms. Earls was aware that Ms. Moore was taking care of her son and apparently did not
object.

        Ms. Moore and Mr. Earls were candid about their relationship. They had a good deal in
common in that they were both trying to raise children on their own. They both worked long hours
and faced significant financial pressures. They decided that pooling their efforts would be mutually
beneficial. Mr. Earls realized that Ms. Moore could help provide babysitting when he was working.
Thus, when his mother could not assist him, Ms. Moore could come to his apartment when he left
for work early in the morning and could oversee his son’s morning routine before the child left for
school.

         These circumstances caused Mr. Earls and Ms. Moore to become close and to depend upon
each other. They conceded that they had kissed on several occasions as Ms. Moore left the
apartment.9 Ms. Moore candidly stated that it “wasn’t the right thing to be going on” and insisted
that she had never been in Mr. Earls’ bed and had never had sex with him. She also explained that
their relationship would not advance further until after Mr. Earls was divorced. Ms. Moore disclosed
that she had slept with her son on Mr. Earls’ couch on several occasions when she had car trouble,
but she insisted that she had not moved into Mr. Earls’ apartment and that she did not keep any of
her things there.

         The trial court found Ms. Moore to be a “fairly credible and very honest” witness. Despite
the absence of any other evidence in the record that Ms. Moore and her son had moved in with Mr.
Earls, the trial court concluded that Ms. Moore was “living” with Mr. Earls. In the trial court’s mind,


       9
        This testimony prompted the trial court to comment: “Why do people that are not married
to each other kiss each other? I don’t understand that. But go ahead, if you want to take that
position.”

                                                 -9-
therefore, the relationship between Mr. Earls and Ms. Moore would have provided Ms. Earls with
sufficient grounds for a divorce had she sought one.10 The trial court also concluded that it provided
a basis for disregarding the parties’ agreed upon custody arrangement that it had already approved,
and for entering the quite unprecedented order permanently enjoining Mr. Earls from coming around
Ms. Moore as long as he is married.11

         The record does not contain one scintilla of evidence that Mr. Earls’ relationship with Ms.
Moore, whatever in truth it might be, has or will have an adverse impact on the parties’ child.
Considering the record objectively, Mr. Earls’ relationship with Ms. Moore, born out of necessity,
simply does not reflect on his ability to be his son’s custodial parent. There being no substantial and
material evidence in the record to require the trial court to second-guess the parties’ own custody and
visitation arrangement, we hold that the court erred by not approving the custody arrangement
originally proposed by the parties. Accordingly, on remand, the trial court shall enter an order
granting the parties joint custody of their son with primary physical custody in Mr. Earls.12 Should
Ms. Earls desire to change this custody arrangement, she will have the burden of proving that a
material change in her child’s circumstances has occurred and that she is comparatively more fit than
Mr. Earls to be the child’s custodial parent.13


       10
         The trial court stated: “As far as I judge what Ms. Moore had to say about y’all’s
relationship, [it] would give this court cause to grant her a divorce, that means Mrs. Earls, but she
doesn’t want one and I’m not going to grant a divorce for her. She hasn’t asked for one, and she
doesn’t want one and the law doesn’t require me to.”
       11
           The trial court stated: “As long as these people [the Earls] remain married it morally
jeopardizes this child to be exposed to Ms. Moore overnight with Mr. Earls in what is clearly at least
on the surface to be perceived at this point in time to be a romantic situation. That’s not good for
. . . [the child] to see that.” Rather than simply addressing possible romantic overnight visits, the
court barred Mr. Earls from all contact with Ms. Moore.
       12
         Following the entry of the order, Mr. Earls, as the custodial parent, will be entitled to
receive the SSI payments for his son resulting from Ms. Earls’ disability.
       13
         The trial court appears to have agreed with Ms. Earls’ argument that she should be
permitted to seek a modification in the custody arrangement whenever she decides that her physical
condition has improved enough to enable her to take care of the parties’ child. However, an
improvement in Ms. Earls’ condition is not, as a matter of law, a changed circumstance that will
warrant reopening the issue of custody. Changed circumstances must involve the child’s
circumstances rather than those of the non-custodial parent. See White v. White, No. M1999-00005-
COA-R3-CV, 1999 WL 1128840, at *3 (Tenn. Ct. App. Dec. 10, 1999) (No Tenn. R. App. P. 11
application filed); McCain v. Grim, No. 01A01-9711-CH-00634, 1999 WL 820216, at *2 (Tenn. Ct.
App. Oct. 15, 1999) (No Tenn. R. App. P. 11 application filed); Gorski v. Ragains, No. 01A01-9710-
GS-00597, 1999 WL 511451, at *4-5 (Tenn. Ct. App. July 21, 1999) (No Tenn. R. App. P. 11
application filed).

                                                - 10 -
                                               III.
                                         SPOUSAL SUPPORT

        Even though the trial court declined to declare the parties’ divorced, it ordered Mr. Earls to
pay Ms. Earls, as spousal support, $570 per month until her death. The court also directed Mr. Earls
to pay all of Ms. Earls’ accumulated medical expenses not covered by insurance and to be
responsible for all her future uncovered medical expenses. These obligations, combined with Mr.
Earls’ other court-ordered obligations, far exceed his income. Accordingly, after considering the
factors in Tenn. Code Ann. § 36-5-101(d)(1) (Supp. 1999), we have determined that the trial court’s
spousal support order must be modified.
                                                 A.

        There are no hard and fast rules for spousal support decisions. See 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. See Garfinkel v. Garfinkel, 945 S.W.2d 744, 748
(Tenn. Ct. App. 1996); Jones v. Jones, 784 S.W.2d 349, 352 (Tenn. Ct. App. 1989). 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.
See Brown v. Brown, 913 S.W.2d 163, 169 (Tenn. Ct. App. 1994); Ingram v. Ingram, 721 S.W.2d
262, 264 (Tenn. Ct. App. 1986).

         Tenn. Code Ann. § 36-5-101(d)(1) (Supp. 1999) reflects a preference for temporary,
rehabilitative spousal support, as opposed to long-term support. See Herrera v. Herrera, 944 S.W.2d
379, 387 (Tenn. Ct. App. 1996); Wilson v. Moore, 929 S.W.2d 367, 375 (Tenn. Ct. App. 1996). The
purpose of rehabilitative support is to enable the disadvantaged spouse to acquire additional job
skills, education, or training that will enable him or her to be more self-sufficient. See Smith v.
Smith, 912 S.W.2d 155, 160 (Tenn. Ct. App. 1995); Cranford v. Cranford, 772 S.W.2d 48, 51 (Tenn.
Ct. App. 1989). The purpose of long-term spousal support, on the other hand, is to provide support
to a disadvantaged spouse who is unable to achieve some degree of self-sufficiency. See Loria v.
Loria, 952 S.W.2d 836, 838 (Tenn. Ct. App. 1997). 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. See Aaron v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995); Isbell v.
Isbell, 816 S.W.2d 735, 739 (Tenn. 1991).

       Even though fault is a relevant consideration when setting spousal support, see Tenn. Code
Ann. § 36-5-101(d)(1)(K), these decisions are not intended to be punitive. See Duncan v. Duncan,
686 S.W.2d 568, 571 (Tenn. Ct. App. 1984); McClung v. McClung, 29 Tenn. App. 580, 584, 198
S.W.2d 820, 822 (1946). The purpose of spousal support is to aid the disadvantaged spouse to
become and remain self-sufficient and, when economic rehabilitation is not feasible, to mitigate the
harsh economic realities of divorce. See Shackleford v. Shackleford, 611 S.W.2d 598, 601 (Tenn.
Ct. App. 1980). While divorced couples often lack sufficient income or assets to enable both of
them to retain their pre-divorce standard of living, see Brown v. Brown, 913 S.W.2d at 169, the


                                                 - 11 -
obligor spouse may be able to provide some "closing in money" to enable the disadvantaged spouse
to approach his or her former financial condition. See Aaron v. Aaron, 909 S.W.2d at 411.

        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). See 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. See Varley v. Varley, 934 S.W.2d 659, 668 (Tenn.
Ct. App. 1996); Crain v. Crain, 925 S.W.2d at 234.

                                                 B.

        We have here a marriage of relatively short duration. While the parties were wed, they made
ends meet by holding down three jobs between them. Following Ms. Earls’ illness and the parties’
separation, their combined needs quickly outstripped the resources available to them. Support
decisions are seldom easy, and they are certainly rendered more difficult when there are legitimate
needs and insufficient resources.

        Mr. Earls paid Ms. Earls $211 per month in temporary support prior to the divorce decree.
At trial, Mr. Earls proposed to continue this support; while Ms. Earls suggested that she should be
responsible for her accrued and future medical expenses and, in return, that Mr. Earls should pay her
$570 per month. Not only did the trial court order Mr. Earls to pay $570 per month in spousal
support, but it also required him to be responsible for Ms. Earls’ future uncovered medical expenses
plus $14,878 in accrued medical expenses.14

       Beyond doubt Ms. Earls needs financial support. Her injury has left her completely disabled,
and the prospects for significant rehabilitation are remote. Her monthly government disability
checks in the amount of $648 are her only current source of income other than the assistance she
receives from her mother and step-father. At the same time, Mr. Earls’ net monthly income –
approximately $1,640 – is modest. In light of our modification of the trial court’s custody decision,
Mr. Earls will be required to support himself and the parties’s child on this income plus the $323
monthly SSI payments which must be used for the child.

       We have determined that Mr. Earls should pay short-term spousal support. Based on the
length of the marriage, Ms. Earls’ needs, Mr. Earls’ ability to pay, as well as the fact that he will
assume primary responsibility for raising the parties’ child, we have determined that Mr. Earls
should pay Ms. Earls support in the amount of $450 per month from April 6, 1999 through March
31, 2006. Neither the amount nor duration of this support shall be modified or extended. We have
also determined that Mr. Earls should continue to pay the $144 monthly premium for Ms. Earls’
COBRA insurance coverage as long as it is available and that Mr. Earls shall receive a credit against


       14
            The accrued expenses were being repaid in monthly installments of $650 over eighteen
months.

                                               - 12 -
his monthly support obligation for these payments as long as he makes them. Finally, we have
determined that Mr. Earls should shoulder the responsibility for paying the balance of Ms. Earls’
uncovered medical expenses that had accrued at the time of the trial not to exceed $10,578.15 On
remand, the trial court shall enter a support order consistent with this opinion. In addition to
establishing Mr. Earls’ spousal support obligation prospectively, the order shall give Mr. Earls credit
for any spousal support payments made since April 6, 1999 that exceed the amount of the support
established by this opinion.

                                            IV.
                                THE AWARD OF ATTORNEY ’S FEES

        Mr. Earls also takes issue with the trial court’s decision to require him to pay Ms. Earls an
additional $4,000 to defray her legal expenses. He asserts that he is unable to pay these expenses.
Ms. Earls responds that she has no assets from which she can pay these expenses and that her
condition renders her unable to generate additional income. She also requests this court to order Mr.
Earls to pay the legal expenses she has incurred as a result of this appeal.

         In a divorce action, an award of attorney's fees is treated as additional spousal support. See
Smith v. Smith, 912 S.W.2d 155, 161 (Tenn. Ct. App. 1995); Gilliam v. Gilliam, 776 S.W.2d 81, 96
(Tenn. Ct. App. 1988). The decision to award attorney's fees lies within the sound discretion of the
trial judge, see Aaron v. Aaron, 909 S.W.2d at 411; Brown v. Brown, 913 S.W.2d at 170, and we will
not interfere with the trial judge's decision unless the evidence preponderates against it. See Batson
v. Batson, 769 S.W.2d 849, 862 (Tenn. Ct. App. 1988). A party is entitled to attorney's fees when
he or she lacks sufficient funds to pay his or her legal expenses or would be required to deplete other
assets to do so. See Brown v. Brown, 913 S.W.2d at 170; Kincaid v. Kincaid, 912 S.W.2d 140, 144
(Tenn. Ct. App. 1995).

        The record leaves little room for doubt that Ms. Earls currently lacks the resources to pay her
lawyer and that her future income from all sources will barely cover her necessities. It is equally clear
that Mr. Earls has few existing assets and that his income is modest when measured against his
future obligations. However, Mr. Earls’ ability to earn income and to accumulate assets is far
superior to Ms. Earls’. Accordingly, we have no basis to second-guess the trial court’s decision to
require Mr. Earls to pay Ms. Earls $4,000 for her legal expenses. However, we have determined that
it would be appropriate to permit Mr. Earls, at his election, to pay this amount in a lump sum or in
installments over two years from the date of the entry of the mandate in this case. We have also
determined that Mr. Earls should not be required to pay the legal expenses Ms. Earls has incurred
as a result of this appeal.


       15
          These expenses amounted to $14,878 at the time of trial. In its final judgment, the trial
court awarded Ms. Earls the $4,300 that had been paid into court and directed her to use these funds
to reduce the amount of these unpaid expenses. We affirm the trial court’s disposition of the funds
paid into court. By applying these funds to the accrued medical expenses, Mr. Earls’ liability of the
accrued but unpaid medical expenses will be capped at $10,578.

                                                 - 13 -
                                                  V.
                          MR . EARLS ’ ASSOCIATION WITH MS. MOORE

        One final issue requires discussion. In light of the evidence regarding Mr. Earls’ relationship
with Ms. Moore, the trial court permanently enjoined Mr. Earls from “coming around” Ms. Moore
as long as he is married. The trial court’s explanation for this astonishing decision is that it did not
believe it “to be in the best interest of this marriage for you Mr. Earls to continue this relationship
with Ms. Moore.” As the court saw it, the injunction would “promote and protect the marriage
relationship which exists and will exist in this case until I am reversed or something new comes
before the court.” At Mr. Earls’ request, we stayed this order while this appeal was pending.

         Courts may appropriately consider a custodial parent’s non-marital sexual activities in the
context of a custody decision. See Lance v. Lance, No. 01A01-9801-CV-00036, 1998 WL 748283,
at *3 (Tenn. Ct. App. Oct. 28, 1998) (No Tenn. R. App. P. 11 application filed); Barnhill v. Barnhill,
826 S.W.2d at 453. However, we have repeatedly pointed out that cohabitation alone does not
necessarily provide grounds for changing custody when there is no proof that it has or will adversely
affect the children. See Varley v. Varley, 934 S.W.2d at 666-67; Sutherland v. Sutherland, 831
S.W.2d 283, 286 (Tenn. Ct. App. 1991).16 In order to shield young, impressionable children from
these sorts of activities, the courts frequently enjoin the parents from engaging in intimate sexual
activities while the children are present. The trial court’s injunction in this case, however, far
exceeds the customary remedies for non-marital sexual conduct.

         No party on appeal has undertaken to defend this portion of the final order. We are not
surprised because the order marks the first time that a trial court has enjoined a party from
associating with another person even when the children are not present. The order cannot stand for
three reasons. First, the record contains absolutely no proof that Mr. Earls’ relationship with Ms.
Moore, whatever it is, has adversely affected or is likely to adversely affect the parties’ child.
Second, the order infringes on Mr. Earls’ constitutionally protected right to associate with persons
of his own choosing. Third, the rationale for the injunction – the trial court’s notion that the parties
would reunite if Ms. Moore was out of the picture – is no longer relevant because we have directed
the trial court, on remand, to enter an order declaring the parties divorced. Thus, as a matter of law,
there is no longer a marriage to be preserved. Accordingly, the trial court’s injunction preventing
Mr. Earls from associating with Ms. Moore while he is married is dissolved.




       16
         See also Williams v. Williams, No. 01A01-9610-CV-00468, 1997 WL 272458, at *6-7
(Tenn. Ct. App. May 23, 1997) (No Tenn. R. App. P. 11 application filed); Salimbene v. Salimbene,
No. 87-194-II, 1987 WL 27748, at *1 (Tenn. Ct. App. Dec. 16, 1987) (No Tenn. R. App. P. 11
application filed); Smith v. Smith, No. 86-43-II, 1986 WL 7621, at *2 (Tenn. Ct. App. July 9, 1986)
(No Tenn. R. App. P. 11 application filed) (reversing a decision to remove two children from the
custody of a mother who admitted to having sexual relations with four different men during the first
three years following the divorce).

                                                 - 14 -
                                                   VI.

         In summary, we reverse the portions of the April 6, 1999 final judgment in which the trial
court (1) declined to divorce the parties, (2) awarded custody of the parties’ child to Ms. Earls and
ordered Mr. Earls to pay child support, (3) directed Mr. Earls to pay $570 per month in permanent
alimony, and (4) ordered Mr. Earls to refrain from associating with Ms. Moore. We remand the case
to the trial court with directions to enter an order consistent with this opinion (1) declaring the parties
divorced in accordance with Tenn. Code Ann. § 36-4-129(b), (2) awarding the parties joint custody
of their child with Mr. Earls receiving primary physical custody, and (3) directing Mr. Earls to pay
Ms. Earls $450 in spousal support in accordance with Section III of this opinion. We tax the costs
in equal proportions to Clark Matthew Earls and his surety and to Shirley Ann Earls for which
execution, if necessary, may issue.




                                                  - 15 -
