                IN THE COURT OF APPEALS OF TENNESSEE


                                                       FILED
DIANA AYCOCKE FLANAGAN,       )   C/A NO. 03A01-9612-GS-00404
                              )                         June 30, 1997
          Plaintiff-Appellee, )
                              )                        Cecil Crowson, Jr.
                              )                        Appellate C ourt Clerk
                              )   APPEAL AS OF RIGHT FROM THE BLOUNT
v.                            )   COUNTY GENERAL SESSIONS COURT
                              )
                              )
                              )
                              )
JAMES WILLIAM FLANAGAN,       )
                              )   HONORABLE WILLIAM R. BREWER, JR.,
          Defendant-Appellant.)   JUDGE




For Appellant                         For Appellee

KEVIN W. SHEPHERD                     PERRY P. PAINE, JR.
Maryville, Tennessee                  Paine, Garrett & Bray
                                      Maryville, Tennessee




                          OPINION




VACATED IN PART
MODIFIED IN PART
AFFIRMED IN PART
REMANDED                                                   Susano, J.

                                  1
          This is a divorce case.     The trial court granted the

plaintiff Diana Aycocke Flanagan (Wife) an absolute divorce from

the defendant James William Flanagan (Husband).     Husband

appealed, arguing (1) that Wife did not prove she was entitled to

a divorce on the ground of inappropriate marital conduct; and (2)

that the trial court’s division of property was inequitable or

otherwise contrary to law.



          When the parties married on July 24, 1992, Wife was 38

and Husband was 43.   They separated in April, 1996.    At the time

of trial, Wife was 42 and Husband was 47.     Neither of the parties

had been previously married.   Their union produced no children.

Wife had two children at the time of the parties’ marriage.

These children lived with the parties during their marriage.



          Wife sought a divorce on the fault ground of

inappropriate marital conduct.    In his answer, Husband denied

that Wife was entitled to a divorce.     He did not file a

counterclaim.



          T.C.A. § 36-4-102(a)(1) sets forth as a ground for

divorce the following “treatment or conduct”:



          The husband or wife is guilty of such cruel
          and inhuman treatment or conduct towards the
          spouse as renders cohabitation unsafe and
          improper which may also be referred to in
          pleadings as inappropriate marital conduct; .
          . .



This ground has been defined as


                                  2
          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).

See also Stone v. Stone, 56 Tenn.App. 607, 611, 409 S.W.2d 388,

391 (1966); Schwalb v. Schwalb, 39 Tenn.App. 306, 328, 282 S.W.2d

661, 672 (1955).



          It is clear that relatively subtle conduct can amount

to “cruel and inhuman treatment or conduct”:



          Cruel and inhuman treatment is often times
          not evidenced by public assaults and
          beatings, but is accomplished in more subtle
          and insidious ways. The whispered invective,
          accusation by insinuation, stinging sarcasm
          and heartless intimidation are the implements
          frequently used by which love, the vital
          principle which animates a marriage, is
          tortured to death; with the result that the
          once happy joinder becomes nothing less than
          a “bridge of groans across a stream of
          tears.”



Newberry v. Newberry, 493 S.W.2d 99, 101 (Tenn.App. 1973).    The

quote from Newberry is followed by language stressing the

importance of a trial court’s assessment of credibility when a

party seeks a divorce on the T.C.A. § 36-4-102(a)(1)ground:



          The existence of such continuous refined
          cruelty can best be determined by the trier
          of the facts who has seen the parties face to
          face and who has observed their manner and
          demeanor as well as that of their respective
          witnesses. In such matters, the Trial
          Judge’s judgment as to credibility of

                                3
            witnesses should not be overturned unless the
            clear preponderance of the evidence is to the
            contrary.



Id.



            While a court “cannot by judicial fiat add an

additional ground for divorce that is unknown to the statute,”

Perrin v. Perrin, 299 S.W.2d 19, 24 (Tenn. 1957), it is likewise

true that



            . . . society is ill-served by a legally
            commanded continuance of a marriage which
            exists in name only. . . . Society is not
            interested in perpetuating a status out of
            which no good can come and from which harm
            may result.



Farrar v. Farrar, 553 S.W.2d 741, 745 (Tenn. 1977) (quoting from

Lingner v. Lingner, 56 S.W.2d 749, 752 (Tenn. 1933) (emphasis in

Farrar).



            Wife presented the following testimony as her basis for

seeking a divorce:



            A. Well, there’s really just no marriage. I
            mean there is no--nothing is ours, everything
            is just his. He doesn’t include me in
            anything. He doesn’t talk to me about
            anything. Anything that he’s going to do or
            wants to do or regarding the house or
            anything. You know, I’m completely left in
            the dark about anything. I know nothing.
            I’m not suppose to know anything.

            Q. Have you tried to inquire of him during
            this marriage?


                                  4
             A. Yeah, everything is real secretive.          To
             me, I mean--

                                 *     *     *

             Q. But you say, he wouldn’t discuss things
             with you about the house?

             A. No, I mean if he was going to do anything
             to the house, he was just going to do it. I
             mean basically that was his house.1

             Q.   Do you have any say so about it?

             A.   No, I had no say so.      None.

             Q. As far as his financial affairs, how has
             he handled his financial affairs since the
             time you got married to him?

             A. It’s just--it’s secretive too.           I wasn’t
             to know anything.

                                 *     *     *

             Q. Would he ever discuss his business
             affairs with you?

             A.   No.

             Q.   Did he tell you why?

             A. Never did. I think everything is just--I
             think it’s just a lot of the way he is, I
             guess. Everything is just his or his
             business. No one else’s.

                                 *     *     *

             A. There’s just no marriage there. No
             communication. There is just no marriage.
             If it was different I wouldn’t have left.



There was no testimony of physical or emotional abuse; nor was

there any testimony that Wife was adversely affected, mentally,

emotionally, or physically, as a result of Husband’s “secretive”

conduct.     There was no testimony that Husband cursed or

mistreated Wife.        There was no testimony that Husband “caus[ed]

    1
        Husband owned the house prior to the marriage.

                                       5
... unnecessary suffering.”           See Gardner, 58 S.W. at 343.



               The evidence preponderates against the trial court’s

determination that Wife is entitled to an absolute divorce on the

ground of inappropriate marital conduct/cruel and inhuman

treatment or conduct.2         In evaluating the evidence, we have

accredited the testimony of Wife where it conflicts with that of

Husband, who generally denied that he was other than a caring and

loving husband.        We do this because the law is clear that in a

case like this, the question of credibility is for the trial

judge.       Newberry, 493 S.W.2d at 101; Tennessee Valley Kaolin

Corp. v. Perry, 526 S.W.2d 488, 490 (Tenn.App. 1974).                Taking her

testimony at face value, it simply does not make out the ground

set forth at T.C.A. § 36-4-102(a)(1).             As the Supreme Court said

in the Perrin case, we “cannot by judicial fiat add an additional

ground for divorce.”         299 S.W.2d at 24.      To approve an absolute

divorce based on this testimony would amount to judicial

legislation.        That is not our role.       If this state is to

recognize the type of conduct shown in this case as a ground for

divorce in a contested setting, it must be accomplished by

legislative enactment.



               We vacate the trial court’s grant of an absolute

divorce.       We recognize that Husband has testified that he does

not want Wife to return to him.3             It is likewise clear that Wife


      2
       Husband’s brief seems to suggest that inappropriate marital conduct may
be different from cruel and inhuman treatment. They are different names for
the same thing. See T.C.A. § 36-4-102(a)(1).
      3
          Husband testified, “I don’t think she should come back.”

                                         6
has no intention of resuming a marital relationship with Husband.

Pursuant to our authority under Rule 36. T.R.A.P., we modify the

trial court’s judgment to provide that the parties will reside

separate and apart, i.e., separate maintenance.    A trial court

“has the inherent power, independent of statute, to grant the

relief [of separate maintenance] in proper cases, where a divorce

is not sought or in which the complainant is not entitled to a

divorce.”    Stephenson v. Stephenson, 298 S.W.2d 717, 719-20

(Tenn. 1957).    At an appropriate time, Wife is at liberty to seek

an absolute divorce pursuant to applicable statutory authority.



            Turning our attention to the division of property, we

note that the applicable statute permits a court to divide

marital property in a case of separate maintenance:



            In all actions for divorce or separate
            support and maintenance, the court having
            jurisdiction thereof may, upon request of
            either party, and prior to any determination
            as to whether it is appropriate to order the
            support and maintenance of one (1) party by
            the other, equitably divide, distribute or
            assign the marital property between the
            parties without regard to marital fault in
            proportions as the court deems just.



T.C.A. § 36-4-121(a)(1).



            We find that the trial court’s division of property in

this case was equitable and otherwise appropriate.    That division

was as follows:


                               To Wife



                                  7
               1992 Chrysler                  $ 7,000
               Cash payment from Husband        7,500
               Debts                           <3,650>
                                              $10,850
                                              =======

                            To Husband

               Furniture and other
                 personal property             $ 8,530
               Savings account                  18,719
               Debts                            <2,600>
               Payment to Wife                  <7,500>
                                               $17,149
                                               =======



The trial court found that the marital property in this case was

properly valued at approximately $28,000.   Husband argues that

the 1992 Chrysler and the savings account should be considered as

his separate property.   We recognize that the 1992 Chrysler was

purchased shortly before the marriage and that a substantial down

payment was made out of Husband’s separate funds; but to the

extent that any portion of the value remaining at the time of

divorce is properly considered as separate property, we believe

the award of that portion to Wife can be justified as alimony in

solido.   See T.C.A. § 36-5-101(a)(1).   In so holding, we are not

going beyond the pleadings because the complaint contains a

prayer for alimony, and the proof justifies such an award in view

of the great disparity in the parties’ incomes and the other

factors set forth at T.C.A. § 36-5-101(d)(1)(A)-(L).      We find no

error in the award of the 1992 Chrysler to Wife.   We are

permitted to affirm the trial court’s award if we find the result

correct, even if we don’t totally agree with the trial court’s

reasoning.   Kelly v. Kelly, 679 S.W.2d 458, 460 (Tenn.App. 1984).




                                 8
          We believe the savings account is properly viewed as a

marital asset.   It seems clear to us that the funds in that

account represent monies earned during the marriage.   As such,

they are marital property, even though the account is in

Husband’s individual name.   Title is not the critical factor in

the separate property/marital property dichotomy.   Langford v.

Langford, 421 S.W.2d 632, 634 (Tenn. 1967).



          A trial court is vested with broad discretion in

dividing the parties’ marital property and in decreeing alimony.

Batson v. Batson, 769 S.W.2d 849, 859 (Tenn.App. 1988); Aaron v.

Aaron, 909 S.W.2d 408, 410-11 (Tenn. 1995).   We do not find that

the evidence preponderates against the trial court’s division and

distribution of property.



          The trial court’s grant of an absolute divorce to Wife

is hereby vacated.   The trial court’s judgment is modified to

provide that Wife will live separate and apart from Husband

pursuant to a decree of separate maintenance.   In all other

respects, the trial court’s judgment is affirmed.   Costs on

appeal are taxed against the appellant and his surety.     This case

is remanded to the trial court for such further proceedings as

may be necessary, consistent with this opinion, and for

collection of costs assessed below, all pursuant to applicable

law.




                                     __________________________
                                     Charles D. Susano, Jr., J.

                                 9
CONCUR:



________________________
Houston M. Goddard, P.J.



________________________
William H. Inman, Sr.J.




                           10
