                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                   November 6, 2000 Session

           VIRGINIA RUTH MOORE v. DWIGHT STEVEN MOORE

                       Appeal from the Circuit Court for Warren County
                             No. 10081    Charles Haston, Judge



                   No. M1999-02301-COA-R3-CV - Filed December 13, 2000


In this divorce case, the husband argues that the trial court erred in the way it classified and
distributed the parties’ marital property. We agree that the trial court’s implied classification of the
parties’ home on Pleasant Cove Road was erroneous as a matter of law, but we find that its
disposition of the property was nonetheless within the court’s authority and discretion. We
accordingly modify the final decree to reflect our view of its correct classification, but otherwise
affirm the trial court.

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

Thomas F. Bloom, Nashville, Tennessee, for the appellant, Dwight Steven Moore.

Sam Wallace, Sr., Nashville, Tennessee, for the appellee, Virginia Ruth Moore.

                                              OPINION

                                           I.
                  A LONG -TERM RELATIONS HIP , A MARRIAGE AND A DIVORCE

        In April of 1976, Dwight Moore and Virginia Ruth Greene Vanatta started living together.
They bought and exchanged wedding bands and held themselves out as man and wife, but did not
actually marry until January 14, 1986. The record contains joint income tax returns in the names of
Dwight S. Moore and spouse Virginia R. Moore, dating from 1979 until 1986.

         In 1977, Mr. Moore bought a 6.5 acre tract of land on Pleasant Cove Road in Warren County,
financing the property through a six-month note, and taking the deed in his name only. Ms. Moore
testified that she helped make the payments on the note. The parties subsequently had a one-half
acre portion of the property surveyed, and borrowed money to build a house on that parcel. A Deed
of Trust, executed on the one-half acre containing the house, was signed “Dwight S. Moore and wife
Virginia R. Moore.” Several more loans were taken on the property, with both parties signing the
notes, and contributing to the payments. The purpose of each of the loans was to produce funds for
business ventures, all of which eventually failed.

       Aside from the marital home, another piece of property at issue is a 48 acre farm located on
Randall Hitchcock Road. That property was owned by Ms. Moore’s mother, Ellen Gibbs, who lived
in a mobile home on the property. Another mobile home on the land was occupied by Virginia
Moore’s former daughter-in-law. In September of 1995, Ms. Gibbs conveyed the property to her son
James Greene, by warranty deed, expressly reserving a life estate for herself. No consideration
passed for the conveyance.

        Mr. Greene testified that he was worried that the property might pass outside his family if
something happened to him, so shortly thereafter, he asked a friend to draft a deed to convey a one
half-interest in the property to his sister. The resulting deed conveyed the interest to “Ruth Moore
et vir Steve Moore,” and contained no mention of the life estate. Mr. Greene did not object when
he saw Mr. Moore’s name on the deed, but he testified that the conveyance was “for love and
affection,” and that he intended the property to go only to Ms. Moore.

        On November 8, 1998, Virginia Moore filed a Complaint for Divorce on the grounds of
irreconcilable differences, or in the alternative, inappropriate marital conduct. Her complaint stated
that she and her husband had been separated since October 3, 1998, but that he was still staying in
their home. Dwight Moore’s answer denied the allegations of the complaint, and asked that it be
dismissed.

        On February 2, 1999, the court granted Ms. Moore’s motion for temporary alimony, and
ordered her husband to pay pendente lite alimony of $1,000 per month, with Ms. Moore to make the
first and second mortgage payments on the marital home from those funds.

        On March 19, 1999, the court gave its approval to an Agreed Order declaring the parties
divorced, and scheduling a hearing for the purpose of determining the division of the marital assets
and debts. A hearing was conducted before a Special Master on May 11, 1999, so he could make
recommendations on property division. The Master’s recommendations were filed with the trial
court three days later.

        Among other things, the Master recommended that the Pleasant Cove Road property be sold,
and the proceeds be split between the parties after the indebtedness was paid off, and that Virginia
Moore retain ownership of the Randall Hitchcock Road farm. Although both parties filed exceptions
to the Master’s recommendations, the trial court confirmed his findings on October 22, 1999,
reserving the issue of alimony for a later hearing.




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       The hearing on the issue of alimony was conducted on November 9, 1999. In the Final
Decree of Divorce, filed November 24, 1999, the trial court ordered Dwight Moore to pay his wife
$1,000 per month in alimony, for a period of two years. The trial court granted Ms. Moore’s
subsequent motion to amend the final decree to require the husband to pay an additional $250 per
month in alimony until the sale of the marital home, to help defray the cost of the monthly mortgage
payments. This appeal followed.

                                                 II.
                                       THE MARITAL HOME

        Tenn. Code. Ann. § 36-4-121 defines the power of the trial court to distribute marital
property pursuant to divorce. The statute authorizes the trial court to “equitably divide, distribute
or assign the marital property between the parties without regard to marital fault in proportions as
the court deems just.” To accomplish this purpose, the court may divest and reinvest title to the
property, and/or to order the sale of the property so that the proceeds may be divided between the
parties. Although marital property is subject to division, separate property is not.

       Section (b)(1)(A) of the same statute defines marital property as follows:

       “all real and personal property, both tangible and intangible, acquired by either or
       both spouses during the course of the marriage up to the date of the final divorce
       hearing and owned by either or both spouses as of the date of filing of a complaint
       for divorce, . . . .

       Separate property is defined as “[a]ll real and personal property owned by a spouse before
marriage.” Tenn. Code. Ann. § 36-4-121(b)(2)(A).

       Although neither the Special Master nor the trial court specifically stated that they found the
home on Pleasant Cove Road to be jointly owned by the parties, such a classification is implicit in
the Special Master’s decision to include it in his recommended distribution of marital property. The
appellant argues, however, that the marital home is not marital property, but rather his own separate
property, because he acquired it in his own name before he and his wife formalized their relationship.

       The appellee for her part argues that Mr. Moore should be estopped from denying that the
property was marital, because the parties were holding themselves out as married when the property
was acquired. Alternatively, she asserts that she and her husband were implied partners in the
business of buying and selling property, and that she therefore had an interest in the property that
rendered it subject to equitable division.

        These same arguments were recently considered by our Supreme Court in Martin v. Coleman,
19 S.W.2d 757 (Tenn. 2000), another case in which the Court was asked to divide property that one
party acquired during an extensive period of unmarried cohabitation with the other.



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        Robert and Dolores Coleman had been married to each other once, and divorced. They
reunited, but never remarried, living together and holding themselves out as husband and wife for
sixteen years. During that period, Mr. Coleman purchased a used car business, using the couple’s
jointly owned house as collateral to finance the purchase. Mr. Coleman later bought the lot on which
the business was located. The purchase was made in his name only, though Ms. Coleman signed the
loan documents.

       When the parties separated, Ms. Coleman filed a complaint for divorce, alleging a marriage
by estoppel and asking for division of the marital assets, including Mr. Coleman’s business, and his
401(k) from a former job. The trial court stated that “equity ought to require this relationship to be
considered marriage by estoppel,” but declined to make such a ruling because it recognized that
would be contrary to case law. In affirming this portion of the trial court’s judgment, the Supreme
Court stated,

               “In Tennessee, marriage is controlled by statute, and common-law marriages
       are not recognized. Our courts have recognized marriage by estoppel when parties
       have believed in the validity of their marriage and have evidenced that belief by
       cohabitation. The doctrine of marriage by estoppel is applied in exceptional cases.
       It does not apply in cases where the parties knowingly live together in an unmarried
       state and are privileged to discontinue that relationship at will.” (Citations omitted)

19 S.W.3d at 760.

        The trial court intended to divide the property equally, however, and it found a rationale to
do so in the theory that an implied partnership existed between the parties during the duration of their
cohabitation. The Supreme Court rejected this theory and reversed the trial court, finding that an
implied partnership could not be inferred from the act of cohabitation alone, but that it only arises
“when it appears that the parties have entered into a business relationship for profit, combining their
property, labor, skill, experience or money.” 19 S.W.3d at 761. An example of such a relationship
within the context of cohabitation may be found in Bass v. Bass, 814 S.W.2d 38 (Tenn. 1991).

        The proof showed that Ms. Coleman’s participation in the used car business was minimal at
best, and that she made no contribution to the 401(k) except for her role as a homemaker. While Ms.
Coleman’s contribution as a homemaker could be considered in dividing marital property, see Tenn.
Code. Ann. § 36-4-121(b)(1)(B), it was not sufficient to establish an implied partnership.

        In the present case, the evidence showed that in 1978, the parties sold one piece of property
that Virginia Moore had owned before meeting Dwight Moore, and that they bought another piece
of property in 1984, and sold it a year later. This does not even come close to establishing an
implied partnership to buy and sell properties as a business.




                                                  -4-
       Even if the home at Pleasant Cove Road was Mr. Moore’s separate property, however, Ms.
Moore insists that she is entitled to a share of it under the provisions of Tenn. Code. Ann. § 36-4-
121(b)(1)(B) and (C), which state:

       (B) “Marital property” includes income from, and any increase in value during the
       marriage of, property determined to be separate property in accordance with
       subdivision (b)(2) if each party substantially contributed to its preservation and
       appreciation and the value of vested pension, retirement or other fringe benefit rights
       accrued during the period of the marriage.

       (C) As used in this subsection, "substantial contribution" may include, but not be
       limited to, the direct or indirect contribution of a spouse as homemaker, wage earner,
       parent or family financial manager, together with such other factors as the court
       having jurisdiction thereof may determine.

        The problem with this theory is the paucity of proof as to Ms. Moore’s contribution to the
preservation and appreciation of the property. She testified that she helped to make the mortgage
payments on the property, but provided no details as to the magnitude of her contribution. Mr.
Moore maintains that the gross amount was minimal, and that it was offset by the financial drain
resulting from the extended stay in the home of Ms. Moore’s two sons from a previous marriage,
their wives and their children. Further, while we may find it plausible that Ms. Moore made a
substantial contribution to the preservation of the home in her role as homemaker, there is no proof
in the record as to any such contribution.

        It thus appears to us that under the statutes governing the distribution of marital property, the
appellee has not overcome the presumption that the Pleasant Cove Road property is the husband’s
separate property, and we cannot fully approve any ruling that implies otherwise. This does not end
the story, however, and we will continue our discussion of the marital home in the section of this
opinion that deals with alimony.

                                        III.
                    THE RANDALL HITCHCOCK ROAD FARM AND THE 401(K )

        The trial court awarded the farm on Randall Hitchcock Road to the wife, and ordered any
interest the husband may have had in the property divested out of him and vested in her. The
husband argues that since it was acquired in both their names during the course of the marriage, the
farm should be considered joint property, and it should be divided equally between the parties.

        Mr. Moore points out that under Tennessee law, unless a deed is ambiguous, the intention
of the grantor is to be determined from its four corners. Hardin v. Hardin, 979 S.W.2d 314 (Tenn.
Ct. App. 1998); Bennett v. Langham 383 S.W.2d 16 (Tenn.1964). Thus, he contends, James
Greene’s testimony as to his intention to convey the property only to his sister is irrelevant, because
the deed unambiguously grants the property to both parties. He also argues that even if we disagreed


                                                  -5-
with his analysis, he would still be entitled to a share in the property because he contributed to its
preservation and appreciation, by building fences and corrals on it, fertilizing it, and maintaining
cattle on it. See Tenn. Code. Ann. § 36-4-121(b)(1)(B).

       The trial court did not characterize the property as either marital property or as the wife’s
separate property, but simply awarded it to her. We believe that the husband’s argument that the
property has to considered marital property is correct. However, it is well established that an
equitable division of martial property is not necessarily an equal division, whether the court is
dealing with a single piece of property or with the entire marital estate. Barnhill v. Barnhill, 826
S.W.2d 443 (Tenn. Ct. App. 1991); Ellis v. Ellis, 748 S.W.2d 424 (Tenn. 1988).

       Trial courts have been granted great discretion when dividing marital property. Loyd v. Loyd,
860 S.W.2d 409, 411 (Tenn. Ct. App. 1993); Harrington v. Harrington, 798 S.W.2d 244, 245 (Tenn.
Ct. App.1990). Accordingly, their decisions are entitled to great weight on appeal, Edwards v.
Edwards, 501 S.W.2d 283, 288 (Tenn. Ct. App.1973), and are presumed to be correct unless the
evidence preponderates otherwise. Mondelli v. Howard, 780 S.W.2d 769, 772 (Tenn. Ct. App.1989).

        In the present case, both parties were awarded a substantial portion of the marital estate.
According to the Rule 15 Table appended to both parties’ briefs, much of the property was evenly
split between the husband and wife, including cattle, farm equipment, and a piece of real property
in McMinnville with a value of $15,000. The husband was awarded the full value of his 401(k)
retirement account ($18,000-$20,000), his guns (worth at least $4,500 according to his own
estimates), his tools ($2,500-$7,500) and his coin collection (no value given). Aside from the
Randall Hitchcock Road farm, the wife was awarded a Certificate of Deposit worth $2,300, personal
property worth $3,000, and a telephone company refund credit worth $250.

         The record shows that the 48 acre farm was mostly very poor land, but Mr. Moore testified
that similar land in the same area sold for between $1,800 and $2,000 per acre. If true, that would
give Ms. Moore’s share of the property a value between $43,200 and $48,000. In light of the overall
distribution of the marital property, and of her family’s connection to the land, we do not believe that
the trial court abused its discretion by granting the farm property solely to Ms. Moore, and we affirm
the award.

         Another piece of property in dispute was Mr. Moore’s 401(k) retirement account. The proof
showed that this account was entirely acquired during the marriage of the parties, indisputably
making it marital property. See Tenn. Code. Ann. § 36-4-121(b)(1)(B), supra, and Batson v. Batson,
769 S.W.2d 849, 857 (Tenn. Ct. App. 1988). Ms. Moore argues that the trial court erred in awarding
it to her husband, and contends that she should be entitled to half of it. We believe, however, that
in light of the award to the wife of the Randall Hitchcock Road farm, it is equitable to award the
husband the entire amount of his 401(k).




                                                  -6-
                                                 IV.
                                              ALIMONY

      Tenn. Code. Ann. § 36-5-101 sets out the factors for the courts to consider in awarding
alimony as follows:

               (A) The relative earning capacity, obligations, needs, and financial resources
       of each party, including income from pension, profit sharing or retirement plans and
       all other sources;
               (B) The relative education and training of each party, the ability and
       opportunity of each party to secure such education and training, and the necessity of
       a party to secure further education and training to improve such party's earning
       capacity to a reasonable level;
               (C) The duration of the marriage;
               (D) The age and mental condition of each party;
               (E) The physical condition of each party, including, but not limited to,
       physical disability or incapacity due to a chronic debilitating disease;
               (F) The extent to which it would be undesirable for a party to seek
       employment outside the home because such party will be custodian of a minor child
       of the marriage;
               (G) The separate assets of each party, both real and personal, tangible and
       intangible;
               (H) The provisions made with regard to the marital property as defined in §
       36-4-121;
               (I) The standard of living of the parties established during the marriage;
               (J) The extent to which each party has made such tangible and intangible
       contributions to the marriage as monetary and homemaker contributions, and tangible
       and intangible contributions by a party to the education, training or increased earning
       power of the other party;
               (K) The relative fault of the parties in cases where the court, in its discretion,
       deems it appropriate to do so; and
               (L) Such other factors, including the tax consequences to each party, as are
       necessary to consider the equities between the parties.

       Elsewhere, this court has stated that the most important factors for the courts to consider are
the need of the obligee spouse, and the ability of the obligor to pay. Loyd v. Loyd, 860 S.W.2d 409
(Tenn. Ct. App. 1993).

       Under either formulation, it is clear that Virginia Moore is entitled to alimony from Dwight
Moore. The proof showed that Ms. Moore was sixty-two years of age at the time of divorce and only
had an eighth grade education. She is unemployed, and her only regular income is $399 per month
in Social Security retirement benefits. Her monthly living expenses, including mortgage payments



                                                  -7-
amount to $1,680. Ms. Moore has serious health problems, and it is uncertain to what extent she will
be able to work to supplement her Social Security.
         As we stated above, the parties married on January 14, 1986. In that same year, Mr. Moore
began working as a superintendent in the construction of new gas station/convenience stores. This
proved to be a demanding but lucrative job, and by the time of divorce, he was earning about
$68,000 a year. However, the forty-eight year old Mr. Moore also suffers from health problems, and
if they worsen, he may not be able to continue in his job.

        The trial court awarded Ms. Moore $1,000 per month in alimony, to be paid for twenty-four
months, or until her death or remarriage, whichever comes sooner. Though the trial court did not
specifically say so, this award of temporary support appears to fall under the category of
rehabilitative alimony. The Legislature established rehabilitative alimony as a separate class of
spousal support, distinct from alimony in solido or periodic alimony, and has specifically stated that
it should be awarded where there is any possibility of an economically disadvantaged spouse
becoming financially independent of a former spouse.

        In view of her age, health, and lack of skills, it appears unlikely that Ms. Moore will be able
to fully rehabilitate herself, but she should be encouraged to make the attempt. If she does not
succeed, then she will be able to apply to the court for a more permanent arrangement, because an
award of rehabilitative alimony “remain[s] within the court’s control for the duration of such award,
and may be increased, decreased, terminated, or otherwise modified, upon a showing of substantial
and material change in circumstances.” Tenn. Code. Ann. § 36-5-101(d)(2). See also Crabtree v.
Crabtree, 16 S.W.3d 356 (Tenn. 2000).

       We accordingly affirm the trial court’s alimony award. It appears to us, however, that even
with that alimony, Ms. Moore remains in need of further financial assistance. The most equitable
way to provide such assistance is through an award of alimony in solido. Such alimony is generally
awarded out of a spouse’s estate. Houghland v. Houghland, 844 S.W.2d 619, 622 (Tenn. Ct.
App.1992), rather than out of an expectation of future earnings. Aleshire v. Aleshire, 642 S.W.2d
729, 733 (Tenn. Ct. App.1981).

        As the trial court no doubt recognized, the most readily available source of additional funds
for both parties would be through the sale of the marital home on Pleasant Cove Road. The proof
showed that the home had a value of $95,000, encumbered by mortgage debts of about $26,000.
Therefore if it were sold, with the proceeds divided equally between the parties, each would receive
over $30,000. We accordingly affirm the court’s order for the sale of the home, and for the division
of the proceeds, but we declare the award to the wife to be alimony in solido rather than division of
marital property. Though this might appear to be a distinction without a difference, we do not think
so. It appears to us that the trial court reached the most equitable result, and we only modify its
decree for the purpose of making certain that it arrives at that result by a legally correct route.




                                                 -8-
                                                V.

       The order of the trial court is affirmed as modified. Remand this cause to the Circuit Court
of Warren County for further proceedings consistent with this opinion. Tax the costs on appeal to
the appellant, Dwight Steven Moore.




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




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