                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  February 14, 2001 Session

                     LINDA WARD ASHER v. EUGENE ASHER

                    Appeal from the Chancery Court for Claiborne County
                           No. 12,266  John McAfee, Chancellor

                                      FILED MAY 9, 2001

                                 No. E2000-00821-COA-R3-CV


        In this appeal from the Claiborne County Chancery Court the Appellant, Linda Ward Asher,
questions whether the Chancery Court erred in granting her an absolute divorce, in failing to award
her alimony in futuro, and in failing to require that the Appellee, Eugene Asher, be required to
maintain health insurance coverage on her behalf. Mr. Asher questions whether the Chancery Court
erred in finding that funds withdrawn by him from a Putnam Investment savings account should be
counted against his equitable share of the marital property and in finding that Ms. Asher should be
awarded alimony. We affirm the judgment of the Chancery Court as modified and remand for further
proceedings, if any, consistent with this opinion. We adjudge costs of this appeal against the Ashers
equally.

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

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
CHARLES D. SUSANO, JR., joined.

Johnny Von Dunaway, LaFollette, Tennessee, for the Appellant, Linda Ward Asher.

Robert Morris Estep, Tazewell, Tennessee, for the Appellee, Eugene Asher.

                                            OPINION

       This is an appeal from a judgment entered by the Chancery Court for Claiborne County in
a divorce action between the Appellant/Plaintiff, Linda Ward Asher, and the Appellee/Defendant,
Eugene Asher.

       Ms. Asher raises three issues for our review which we restate as follows:

       1. Did the Chancery Court err in granting Ms. Asher an absolute divorce when she only
sought a legal separation?
       2. Did the Chancery Court err in failing to award Ms. Asher alimony in futuro?

       3. Did the Chancery Court err in failing to require that Mr. Asher maintain health insurance
coverage on behalf of Ms. Asher?

       The following three additional issues, which we also restate, are raised by Mr. Asher:

       1. Did the Chancery Court err in finding that monies withdrawn by Mr. Asher from a Putnam
Investment savings account should be counted against his equitable share of the marital assets?

       3. Did the Chancery Court err in granting Ms. Asher alimony given the duration of her
marriage to Mr. Asher?

        2. Did the Chancery Court err in granting Ms. Asher alimony when she had already received
a Circuit Court judgment of $35, 000.00 in an assault suit against Mr. Asher?

      Our standard of review of this non-jury case is, as mandated by Tenn. R. App. P. 13(d), de
novo upon the record of the proceedings below, with a presumption of correctness unless the
preponderance of the evidence is otherwise. No such presumption exists as to findings of law.
Campbell v. Florida Steel Corporation, 919 S.W.2d 26 (Tenn.1996).

        Mr. and Ms. Asher were married on January 10, 1992. In November of 1995 the Ashers'
relationship began to deteriorate and in October of 1996 they separated. During this time Mr. Asher
became involved in an extramarital relationship with another woman who subsequently became
pregnant with his daughter who was born in March of 1998.

        On September 3, 1997, Mr. Asher physically assaulted Ms. Asher and as a consequence Ms.
Asher suffered a hyperextension injury to her neck which required surgical treatment and left her
with a twelve per cent permanent partial impairment to her body as a whole. On September 11,
1997, Ms. Asher filed a complaint in the Circuit Court for Claiborne County "for bodily injuries,
medical expenses, pain and suffering, lost wages, loss of earning capacity and related expenses". On
October 19, 1998, the Circuit Court entered its judgment in the case awarding Ms. Asher damages
in the amount of $35,000.00. In addition, Mr. Asher pled guilty to aggravated assault before the
Criminal Court of Claiborne County which adjudged that he be placed on supervised probation for
two years with restitution for lost wages and medical bills reserved until a later date.

       Mr. Asher initially filed a complaint for divorce in the Claiborne County Chancery Court on
October 16,1996; however, that complaint was dismissed upon a finding that Mr. Asher had offered
perjured testimony in the case. Thereafter, on October 14, 1998, Ms. Asher filed a complaint for




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divorce and/or legal separation1 in that court on grounds of inappropriate marital conduct rendering
cohabitation unsafe and improper. On November 16, 1998, Mr. Asher filed an answer and counter
complaint requesting that he be granted an absolute divorce from Ms. Asher on the grounds of
inappropriate marital conduct rendering cohabitation unsafe and improper, adultery and separation
for more than two years.

         Trial of the divorce case was conducted on February 4, 2000, and on February 29, 2000, the
Chancery Court entered its judgment which granted Ms. Asher an absolute divorce and decreed that
she be awarded a judgment against Mr. Asher in the amount of $14,690.51 representing her equitable
share of the value of marital assets including assets sold, transferred or concealed by Mr. Asher prior
to trial. The Court further decreed that Ms. Asher be awarded $8,577.17 representing insurance
proceeds from the casualty loss of a truck which belonged to the parties. The Court also awarded
Ms. Asher alimony of $300.00 per month for thirty six months and ordered that the marital residence
be sold with one-half of the net sale proceeds to be paid to Ms. Asher in satisfaction of the
$14,690.51 judgment. Finally, the Court stated that Ms. Asher shall be responsible for payment of
her medical insurance coverage.

       Both Mr. and Ms. Asher filed motions for reconsideration, in response to which an order was
entered by the Court on March 29, 2000, designating the $300.00 per month alimony award granted
Ms. Asher as rehabilitative alimony and increasing Ms. Asher's judgment against Mr. Asher by
$4,671.18. This appeal followed.

       The first issue in this matter contends whether the Chancery Court erred in granting Ms.
Asher an absolute divorce when she only requested a legal separation. We do not find that the Court
erred with respect to this issue.

        T.C.A. 36-4-119 states as follows:

            Decree of court generally.- If, upon hearing the cause, the court is satisfied that the
            complainant is entitled to relief, it may be granted either by pronouncing the
            marriage void from the beginning, or by dissolving it forever and freeing each
            party from the obligations thereof, or by a separation for a limited time.

       This court has interpreted the language set forth in T.C.A. 36-4-119 as vesting in the trial
judge broad discretion as to the type and extent of relief granted. See Hutton v. Hutton, 584 S.W.
2d 670 (Tenn. Ct. App. 1979).

       Furthermore, T.C.A. 36-4-102 which pertains to a complaint for legal separation states as
follows at part (d):


        1
         The complain t filed by Ms. A sher on O ctober 14, 1998 is styled 'Complaint for Divorce and/or Legal
Separation' and Ms. Asher a sserts therein that she is entitled to a legal separation or divorce from bed and board.
However, she prays only for a legal separation.

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         Notwithstanding this section, a party who can establish grounds for divorce from
         the bonds of matrimony pursuant to section 36-4-101 shall be entitled to an
         absolute divorce pursuant to the provisions of this chapter.

       Among the grounds for divorce set forth at T.C.A. 36-4-101 are the following:

         (3) Either party has committed adultery.

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

         (15) For a continuous period of two(2) or more years which commenced prior to
         or after April 18, 1985, both parties have lived in separate residences, have not
         cohabited as man and wife during such period, and there are no minor children of
         the parties.

        Our review of the record reveals that there is sufficient evidence, based on the testimony of
both Mr. and Ms. Asher, for the Court to have determined that each of the above grounds for an
absolute divorce existed under the circumstances of this case. In addition, both Mr. and Ms. Asher
testified that there is no hope of reconciliation between them.

       While we acknowledge that Ms. Asher prayed for legal separation only in her complaint, the
Chancery Court was not restricted by her request. As stated by the Supreme Court of this State in
Lingner v. Lingner, 56 S.W.2d 749 (Tenn. 1933) at page 752:

         The wishes of neither party in a divorce case control the actions of the court. The
         court, of course, gravely considers the desires of the party wronged, but the court
         reserves the right to determine for itself what is best for that party.

       In the Lingner case the Supreme Court held that a court hearing a divorce action can
appropriately order an absolute divorce over the objection of the wronged spouse if reconciliation
between the parties is deemed an impossibility and if no societal interest can be served by
perpetuation of the union.

         Ms. Asher argues that a societal interest will be served by allowing the marriage to continue
in that she will thereby be provided with health insurance as Mr. Asher's wife under the insurance
coverage provided by his employer. Ms. Asher contends that because of her medical condition,
which resulted from Mr. Asher's assault upon her in September of 1997 she will be unable to obtain
her own insurance and that the public will, therefore, be left to assume the burden of her future
medical expenses.



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        The Chancery Court, in its opinion of February 29, 2000, recognized Ms. Asher's need for
insurance and calculated her award of alimony at $300.00 per month for thirty six months to allow
for payment of insurance premiums under COBRA for the maximum period that such coverage will
be available after the divorce. In its order of March 29, 2000, the Court decreed that the award of
alimony be designated 'rehabilitative' which will allow for modification of the amount awarded
should the cost of the premiums increase. We find no proof in the record that Ms. Asher's current
medical problems will require medical treatment after thirty six months and, therefore, we find no
merit in Ms. Asher's argument that she will become a public ward because of future medical costs.

      Next, Ms. Asher asserts that the Chancery Court erred in failing to award alimony in futuro.
We disagree.

       A trial court is allowed broad discretion in determining the amount and duration of spousal
support. See Watters v. Watters, 959 S.W.2d 585 (Tenn. Ct. App. 1997). And, as between in futuro
alimony and rehabilitative alimony, the Legislature has expressed a preference for the latter by
enacting T.C.A. 36-5-101(d)(1) which proclaims that "it is the intent of the General Assembly that
a spouse who is economically disadvantaged, relative to the other spouse, be rehabilitated whenever
possible by the granting of an order for payment of rehabilitative, temporary support and
maintenance."

       As stated by the Tennessee Supreme Court in Self v. Self, 861 S.W.2d 360, 361 (Tenn.1993):

                 The statute reflects an obvious legislative policy that, if possible, the
         dependency of one ex-spouse on the other be eliminated and both parties be
         relieved of the impediments incident to the dissolved marriage, and that an ex-
         spouse be adjudged permanently dependent upon the other only when the court
         granting the divorce finds that economic rehabilitation is not feasible and long
         term support is necessary.

        Ms. Asher asserts that economic rehabilitation is not feasible in this case and that long term
support is necessary. In support of this assertion, Ms. Asher refers to the consequences of the
injuries that she suffered from the assault upon her by Mr. Asher. As much as we deplore the actions
of Mr. Asher, we cannot ignore the fact that Ms. Asher has already been awarded $35,000.00 by the
Circuit Court to compensate her for the consequences of that assault. Although Ms. Asher contends
that Mr. Asher has rendered himself judgment proof and that the $35,000.00 is not collectible, the
judgment is valid and remains potentially collectible in the future irrespective of current prospects
for collection. Additionally, we note that this judgment is not subject to discharge by bankruptcy,
it being a debt for willful and malicious injury. It is our view that rehabilitative alimony was
properly awarded in this case.

        Although we find that the Court did not err in awarding rehabilitative alimony, we also find
that the amount of alimony awarded is inadequate and should be increased.



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       Three factors which the trial court is required to consider in determining the proper amount
of spousal support under T.C.A. 36-5-101(d)(1) are 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;

         (I) The standard of living of the parties established during the marriage.

         (K) The relative fault of the parties in cases where the court, in its discretion,
         deems it appropriate to do so;

        Ms. Asher is forty two years old and is currently unemployed. She has obtained a G.E.D.
Although she has taken college level courses, she does not have a college degree. The record shows
that her only source of money at the time of the divorce was a boarder who paid monthly rent of
$200.00 along with the monthly utility expenses on the residence; however, this source of income
was to end upon sale of the residence pursuant to the Chancery Court's judgment. Mr. Asher is forty
seven years old and receives an annual income of $25,770.84 from disability benefits. Considering
Ms. Asher's age, level of education and the fact that she is currently unemployed, it appears likely
that she will require additional monies in order to achieve a reasonable level of rehabilitation.

         During the marriage, prior to the parties' separation, Ms. Asher had a place to live and was
supplied with the basic necessities of life. The Chancery Court has contemplated that, out of the
$300.00 per month alimony award, Ms. Asher will be paying $237.38 of the $300.00 for her health
insurance. This will leave her with a mere $62.62 each month to satisfy her basic living expenses.
It is our conclusion that this will leave Ms. Asher in a financial condition inferior to that experienced
by her during her marriage.

        Finally, the Chancery Court found, and we agree, that Mr. Asher was the party at fault in this
divorce. As confirmed by his own testimony and other evidence in the record, Mr. Asher engaged
in an extramarital relationship with another woman and engaged in inappropriate marital conduct
by assaulting his wife.

        The courts in Tennessee have held that the amount of alimony should be determined so that
the wronged spouse is not left in a worse financial condition than he or she experienced before the
other spouses's misconduct brought about the divorce. See Aaron v. Aaron, 909 S.W.2d 408 (Tenn.
1995) and Shackleford v. Shackleford, 611 S.W.2d 598 (Tenn. Ct. App.1980). In consideration of
the facts set forth above, we find that the award of alimony should be increased from $300.00 per
month for thirty six months to $500.00 per month for the same period.

        The third issue raised by Ms. Asher in this appeal questions whether the Chancery Court
erred in failing to require that Mr. Asher maintain her health insurance. We do not find that the
Chancery Court erred in this regard.


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        Ms. Asher argues that Mr. Asher is bound to pay support for disabilities incurred during the
marriage, simply as a duty arising out of the nature of the marital relationship itself. As noted in its
opinion, the Chancery Court contemplated Ms. Asher's medical coverage for thirty six months in
its award of alimony. We find no proof in the record that Ms. Asher will require medical treatment
for more than thirty six months for any disabilities she incurred during the marriage.

        The next issue we address is raised by Mr. Asher and concerns whether the Chancery Court
erred in determining that funds withdrawn by him from a Putnam Investment savings account should
be counted against his equitable share of the marital estate.

        The record shows that, during the marriage, Mr. Asher controlled a savings account set up
by his employer through Putnam Investment. In January and July of 1996 Mr. Asher withdrew funds
from this account in the total amount of $20,575.85. In consideration of the coincidence of these
withdrawals with the breakdown of the marriage and the subsequent divorce, the Chancery Court
found that these funds were withdrawn in anticipation of divorce. Consequently, when the Court
calculated Ms. Asher's equitable share of the marital property it allowed her an equity of $10,287.93
for one half of the monies withdrawn from the Putnam savings accounts.

       Mr. Asher contends that the funds withdrawn from the Putnam accounts were used by him
to diminish marital debt and that the Court erred in failing to consider that fact when it awarded Ms.
Asher one half of the funds. In support of his argument Mr. Asher relies on a list of debt filed in the
Chancery Court as exhibit 21 (see appendix A). However, our review of this exhibit does not
persuade us that it presents proof that the Putnam savings funds were used to reduce marital debt.
Exhibit 21 merely purports to show a summary of debts and debt amounts owed by the Ashers in
October, 1996, in November, 1997 and at the time of the divorce trial in February, 2000. Exhibit
21 offers no proof as to who paid these debts or as to the source of the monies used to pay these
debts. Mr. Asher's argument that the Putnam savings funds were used to reduce marital debt is not
supported by the record and is without merit.

        The second issue raised by Mr. Asher is whether the Chancery Court erred in granting Ms.
Asher alimony given the duration of the parties' marriage. The record shows that Mr. and Ms. Asher
married in January, 1992, separated in October, 1996, and divorced in February, 2000. The parties
were, therefore, married for eight years and resided together for four of those eight years. Mr. Asher
offers no legal support for his contention that Mr. and Ms. Asher's marriage was of such short
duration as to prevent an award of alimony and we do not find that the Chancery Court erred in this
regard.

        Finally, Mr. Asher asserts that that the Chancery Court erred in awarding Ms. Asher alimony
because she had already received the $35,000.00 Circuit Court judgment against Mr. Asher for the
September,1997 assault. Mr. Asher maintains that the doctrine of res judicata prohibits the award
of alimony by the Chancery Court because the issues relating to alimony were the same issues
litigated and determined in the prior Circuit Court lawsuit.



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        Generally, in order to prove a plea of res judicata, it is necessary that the record or a copy
of the record of the former case be put in evidence. See American National Bank v. Bradford, 188
S.W.2d 971 (Tenn. Ct. App. 1945). With respect to the Circuit Court lawsuit, Mr. Asher has only
provided us with copies of Ms. Asher's complaint, her amended complaint, her motion for issuance
of a temporary injunction, a notice on the motion for temporary injunction and the Circuit Court's
judgment. In her complaint, Ms. Asher demands that she be compensated for "bodily injuries,
medical expenses, pain and suffering, lost wages, loss of earning capacity and related expenses".
The Circuit Court's opinion, which is incorporated in its judgment (see appendix B), recites the
circumstances of the assault and notes that Ms. Asher received emergency medical treatment,
underwent surgery and incurred a twelve per cent permanent partial disability to her neck. The
opinion further holds that Mr. Asher committed the assault and caused Ms. Asher's injuries.

         The primary consideration of the Chancery Court in awarding Ms. Asher alimony was that
she have adequate health insurance for a period of rehabilitation. In addition, we have determined
that Ms. Asher should have additional alimony based upon the parties' relative earning capacity,
upon the standard of living established during the marriage and upon the fact that Mr. Asher was at
fault in the breakup of the marriage. There is nothing in the record before us to show that the Circuit
Court judgment was based upon any of the factors which support an award of alimony by the
Chancery Court. We acknowledge that a previous judgment is res judicata not only as to those
matters actually determined in the prior action but also as to matters which reasonably could have
been determined in the prior action. See American Nat'l Bank and Trust v. Clark, 586 S.W.2d 825
(Tenn. 1979). However, it is our determination that matters related to the award of alimony in this
divorce case would not have been appropriate matters for litigation in the assault case. Accordingly,
we find that the doctrine of res judicata will not preclude an award of alimony in this case.

       For the foregoing reasons the judgment of the Chancery Court is affirmed as modified and
the cause is remanded for such further proceedings, as may be necessary, and for collection of costs
below which are, as are costs of appeal, adjudged against the Ashers equally.



                                               _________________________________________
                                               HOUSTON M. GODDARD, PRESIDING JUDGE




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