       IN THE COURT OF APPEALS OF TENNESSEE
            MIDDLE SECTION AT NASHVILLE

                                              FILED
                                              December 12, 1997
WILLIAM B. DEMONTBREUN,                )
                                       )      Cecil W. Crowson
                                             Appellate Court Clerk
      Plaintiff/Appellant,             )
                                       )     Sumner General Sessions
VS.                                    )     No. 2496-G
                                       )
                                       )     Appeal No.
KATHY JO MITCHELL DEMONTBREUN,         )     01A01-9703-GS-00129
                                       )
      Defendant/Appellee.              )



              APPEAL FROM THE GENERAL SESSIONS COURT
                        FOR SUMNER COUNTY
                      AT GALLATIN, TENNESSEE

                 THE HONORABLE BARRY BROWN, JUDGE



For the Plaintiff/Appellant:           For the Defendant/Appellee:

Nicholas D. Hare                       Wayne Detring
Nashville, Tennessee                   Hendersonville, Tennessee




          AFFIRMED IN PART; MODIFIED IN PART
                   AND REMANDED




                                       WILLIAM C. KOCH, JR., JUDGE
                                 OPINION

      This appeal focuses on the financial aspects of the dissolution of a short-term
marriage. After approximately four years of marriage, the husband filed for divorce
in the Sumner County General Sessions Court. Less than one week later, the wife
filed for divorce in the Chancery Court for Sumner County. The parties agreed to
consolidate the cases in the general sessions court, and following a bench trial, the
court declared the parties divorced, divided the marital property and debts, awarded
the wife $1,500 in alimony, and directed the husband to pay the wife $2,500 for her
legal expenses. Both parties take issue with the judgment. The husband asserts that
the general sessions court’s calculation of his debts to the wife is incorrect. The wife
takes issue with the resolution of marital fault, the division of marital property, and
the amount of the rehabilitative alimony award. While the calculation of the
husband’s debt to the wife must be modified, we affirm the remainder of the
judgment.


                                           I.


      Kathy Jo Mitchell first met William B. Demontbreun prior to 1991 when she
retained him to prepare her federal income taxes. Ms. Mitchell had recently left her
employment with a stockbroker and had received distributions of her pension and
profit-sharing accounts. Mr. Demontbreun was a self-employed accountant. Ms.
Mitchell went to work for Mr. Demontbreun in January 1991, and they were married
on May 10, 1991. Ms. Mitchell was then thirty-six years old and had been married
once. Mr. Demontbreun was fifty years old and had been married twice.


      The marriage was apparently troubled from the beginning. The parties had
financial and religious disagreements. Mr. Demontbreun believed that Ms. Mitchell
was controlling, sexually distant, and intemperate with money. For her part, Ms.
Mitchell believed that Mr. Demontbreun was verbally and physically abusive. She
also discovered after the marriage that Mr. Demontbreun was experiencing serious
financial problems.     As a result, Ms. Mitchell made periodic loans to Mr.
Demontbreun from the funds that had been in her retirement and profit sharing



                                          -2-
accounts prior to the marriage. Mr. Demontbreun agreed to repay these loans as he
obtained funds.


      The parties separated in August 1995 following a dispute over one of their
automobiles. On November 16, 1995, Mr. Demontbreun filed suit in the Sumner
County General Sessions Court seeking a divorce on the grounds of irreconcilable
differences and inappropriate marital conduct. Six days later, Ms. Mitchell filed a
divorce action in the Chancery Court for Sumner County seeking a divorce on the
same grounds. Following a bench trial on July 29, 1996, the general sessions court
filed its findings of fact and conclusions of law and final decree on August 19, 1996.
The court declared the parties divorced in accordance with Tenn. Code Ann. § 36-4-
129(b) (1996). It also directed Mr. Demontbreun to pay Ms. Mitchell $6,200 for her
loans during the marriage, as well as $1,500 for her educational expenses, and $2,500
for her legal expenses. In addition, the court awarded each party their separate
property, divided the marital property, and allocated the marital debts. Both parties
take issue with the judgment


                                         II.
                  THE AWARD OF THE DIVORCE TO BOTH PARTIES


      Ms. Mitchell takes issue with the trial court’s decision to declare both parties
divorced in accordance with Tenn. Code Ann. § 36-4-129(b) rather than to grant her
the divorce. She claims in a rather perfunctory way that she proved more serious
marital fault than did Mr. Demontbreun and, therefore, that she was entitled to the
divorce. We find little merit in this argument.


      Appellate courts review decisions awarding a divorce to either or both parties
using the familiar Tenn. R. App. P. 13(d) standard. Accordingly, we presume that the
trial court’s findings are correct, and we will not overturn them unless they are not
supported by a preponderance of the evidence or are inconsistent with the applicable
divorce statutes. See Hazard v. Hazard, 833 S.W.2d 911, 913 (Tenn. Ct. App. 1991).
While Ms. Mitchell presented evidence of at least two incidents of physical abuse by
Mr. Demontbreun and of their disputes over religious and financial matters, Mr.
Demontbreun presented evidence of Ms. Mitchell’s controlling conduct, her
reluctance to associate with his family, and the couple’s sexual dysfunction. The


                                         -3-
evidence presented by both parties supports the general sessions court’s decision to
declare the parties divorced.


                                          III.
                     THE DIVISION OF THE MARITAL ESTATE


      Ms. Mitchell also asserts that the general sessions court erred by failing to
award her one half of the $14,000 Mr. Demontbreun allegedly had in a lock box at
home at the time of the separation. While the court did not mention these funds in
its findings of fact, the omission is not necessarily error in light of the conflicting
proof concerning these funds.


      Mr. Demontbreun testified that the parties customarily kept between two and
three thousand dollars in cash in a lock box in their apartment and that Ms. Mitchell
frequently took funds from the box for spending money. He stated he removed the
money from the box prior to the separation. Contrary to Mr. Demontbreun’s
testimony concerning the amount of money in the box, Ms. Mitchell testified that
there was $14,000 in the lock box when the parties separated. There is no clear proof
about what Mr. Demontbreun did with this money or whether any of it was still in his
possession at the time of the divorce hearing.


      Trial courts have wide discretion when determining how to divide a marital
estate in an equitable manner. See Fisher v. Fisher, 648 S.W.2d 244, 246 (Tenn.
1983); Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994). Their
discretion is guided by the factors listed in Tenn. Code Ann. § 36-4-121(c) (Supp.
1997) and by other factors made relevant by the facts of the particular case. See Ellis
v. Ellis, 748 S.W.2d 424, 427 (Tenn. 1988); Denton v. Denton, 902 S.W.2d 930, 932
(Tenn. Ct. App. 1995). Reviewing courts give great weight to a trial court’s
distribution of marital property and will not disturb its decision unless it is contrary
to the preponderance of the evidence. See Wilson v. Moore, 929 S.W.2d 367, 372
(Tenn. Ct. App. 1996); Wade v. Wade, 897 S.W.2d 702, 715 (Tenn. Ct. App. 1994).


      Marital property should be divided in a just and equitable manner. The
division need not be mathematically equal to be equitable, see Cohen v. Cohen, 937
S.W.2d 823, 832 (Tenn. 1996), and each party need not receive a share of every item


                                          -4-
of marital property. See Brown v. Brown, 913 S.W.2d at 168. When a marriage has
been short, the trial court may distribute the marital property in a way that, as nearly
as possible, restores the parties to their pre-divorce economic circumstances. See
Batson v. Batson, 769 S.W.2d 849, 859 (Tenn. Ct. App. 1988).


      The fact that the general sessions court did not mention the money in the
parties’ lock box supports one of three possible conclusions. First, the court could
have determined that the funds had long since been spent. Second, the court could
have concluded that it would be equitable to award Mr. Demontbreun these funds.
Third, the court could have overlooked the existence of these funds. We do not
choose to adopt the third possibility because of the lack of proof corroborating Ms.
Mitchell’s statement that the lock box contained $14,000. We choose instead to
presume that the trial court performed its duty in a responsible manner. In light of
the proof of Mr. Demontbreun’s economic difficulties, we have concluded that the
weight of the circumstantial evidence is that Mr. Demontbreun spent these funds
between the separation and the divorce hearing and, thus, that they were not available
for distribution as part of the marital estate.


                                           IV.
              THE AWARD FOR REHABILITATIVE SPOUSAL SUPPORT


      Ms. Mitchell contends that she should have received more spousal support.
The general sessions court awarded her $1,500 to enable her to become a certified
office manager. Ms. Mitchell now insists that the trial court should have also
awarded her $138 per month for two years to enable her to pay her medical insurance
premiums.


      Tennessee’s spousal support statute expresses a strong preference for
rehabilitative spousal support. See Tenn. Code Ann. § 36-5-101(d)(1) (Supp. 1997).
The purpose of this support is to enable the recipient spouse to acquire job skills,
education, or training that will enable him or her to be more self-supporting. 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 needs of the recipient spouse and the
obligor spouse’s ability to pay are generally the most important considerations when
setting spousal support, see Crain v. Crain, 925 S.W.2d 232, 234 (Tenn. Ct. App.


                                           -5-
1996); Barnhill v. Barnhill, 826 S.W.2d 443, 455 (Tenn. Ct. App. 1991); however,
rehabilitative support issues focus more on the need of the recipient spouse. See
Wade v. Wade, 897 S.W.2d at 719.


      Trial courts have wide discretion to fashion support awards, and thus appellate
courts give great weight to their decisions. See Wilson v. Moore, 929 S.W.2d at 375.
While the courts may weigh fault into the equation, see Tenn. Code Ann. § 36-5-
101(d)(1)(K), spousal support awards should not be punitive. See Brown v. Brown,
913 S.W.2d at 169.


      Ms. Mitchell is currently forty-three years old and is in good health. She was
economically self-sufficient before the marriage. At the time of the divorce she
worked part-time at a department store; however, she is capable of more gainful
employment in light of her premarital work history and her plans to rehabilitate
herself by improving her job skills. On the other hand, Mr. Demontbreun is now
sixty-six years old. He has suffered a number of financial reversals, and it is unlikely
that his ability to earn income or to accumulate capital assets will improve during the
remaining years that he will be able to work. In light of the parties’ personal
circumstances, the duration of their marriage, and the division of their marital
property, we find that the evidence does not preponderate against the court’s denial
of Ms. Mitchell’s request that Mr. Demontbreun pay her medical insurance premiums
for two years.


                                          V.
                                THE UNPAID LOANS


      Mr. Demontbreun asserts that the general sessions court erred by ordering him
to pay Ms. Mitchell $6,200 representing repayment of the loans she made to him
during the marriage.      He claims that the trial court should have taken into
consideration one payment he made before the marriage, the money Ms. Mitchell
received between the separation and the divorce trial, the parties’ honeymoon
expenses, and a calculation error by Ms. Mitchell. Not surprisingly, the total of Mr.
Demontbreun’s claimed adjustments more than off-sets the amount of money he
owed to Ms. Mitchell when the parties separated. We have determined that the
$6,200 award should be modified.


                                          -6-
      Ms. Mitchell insists at the outset that Mr. Demontbreun should not be
permitted to take issue with the general sessions court’s calculation of his
indebtedness because he testified at trial that she had given him credit for all the
payments he had made. While Mr. Demontbreun did make this concession at one
point during his cross-examination, he took issue with several aspects of Ms.
Mitchell’s evidence at other points. Since we are reviewing the evidence in
accordance with Tenn. R. App. P. 13(d), Mr. Demontbreun’s statements are not
conclusive if the record contains credible evidence of other facts contrary to his
concessions. See Osborne v. Hartford Accident & Indemn. Co., 63 Tenn. App. 518,
530-31, 476 S.W.2d 256, 261 (1971); see also Johnson v. Steele, 541 S.W.2d 795,
799 (Tenn. Ct. App. 1976); Harvey v. Wheeler, 57 Tenn. App. 642, 648, 423 S.W.2d
283, 285-86 (1967).


      Both parties agreed that Ms. Mitchell routinely loaned Mr. Demontbreun
money during the marriage with the expectation that Mr. Demontbreun would repay
her when he was able. The parties’ record keeping concerning these loans and
repayments was extremely haphazard. At trial, Ms. Mitchell’s testimony that Mr.
Demontbreun still owed her $6,775 was based solely on her bank statements and
canceled checks during the marriage. Mr. Demontbreun likewise kept no running
tabulation of these loans and contradicted Ms. Mitchell’s calculations with his own
canceled checks. With the evidence in such a confusing condition, it would be
difficult for any finder-of-fact to avoid calculation errors.


      Part of the loans claimed by Ms. Mitchell included $2,000 loaned to Mr.
Demontbreun in January 1991 to help him pay some legal expenses related to his
bankruptcy proceeding. Ms. Mitchell substantiated this loan by producing a $2,000
check dated January 30, 1991 made payable to Mr. Demontbreun. Mr. Demontbreun
asserted that he repaid this loan one week later and produced a $2,000 check dated
February 5, 1991 made payable to Ms. Mitchell. Ms. Mitchell did not contradict Mr.
Demontbreun on this point. Accordingly, we find that Mr. Demontbreun should have
received credit for this payment and that the amount of his debt to Ms. Mitchell
should be reduced by $2,000.


      Mr. Demontbreun also asserts that the general sessions court did not apportion
all the parties’ wedding and honeymoon expenses and that he should have received


                                          -7-
a $1,200.96 credit rather than a $500 credit against his debt to Ms. Mitchell.
Although the proof shows that the parties’ wedding and honeymoon cost $2,276.96,
Ms. Mitchell testified without contradiction that the wedding cost approximately
$1,000 and that the remainder of the expenses were for the honeymoon. She also
testified that Mr. Demontbreun had agreed to pay for the wedding and honeymoon
and, therefore, that the trial court erred by requiring the parties to be jointly
responsible for these expenses. Since Mr. Demontbreun does not contradict Ms.
Mitchell’s assertion that he agreed to pay for the wedding and honeymoon, it appears
that Ms. Mitchell loaned him the money for both events and that she was entitled to
be repaid for these expenses. Accordingly, he was not entitled to a credit for any of
the expenses related to the wedding and honeymoon.


      Mr. Demontbreun claims that he should also receive credit for the $5,870.64
Ms. Mitchell received after the parties’ separation. As best as this record reveals,
these funds were used for car payments, insurance premiums, and other expenses
related to Ms. Mitchell’s support. Thus, they were in the nature of voluntary
pendente lite support rather than loan repayments. Since Mr. Demontbreun was
obliged to support Ms. Mitchell prior to the divorce, the general sessions court did
not err by refusing to give him credit for the these payments against his debt to Ms.
Mitchell.


      Mr. Demontbreun’s final claimed adjustment stems from a miscalculation of
the loans Ms. Mitchell made to Mr. Demontbreun in 1993. Ms. Mitchell asserted that
she loaned him $16,271 in 1993; however, the bank statements and checks she
produced at trial showed withdrawals and payments amounting to only $15,300.
Because Ms. Mitchell could not substantiate the full amount of the 1993 loans, Mr.
Demontbreun should have received a $971 deduction from the amount claimed by
Ms. Mitchell.


      In summary, we have determined that the general sessions court’s award
reflecting Mr. Demontbreun’s indebtedness to Ms. Mitchell must be modified. Mr.
Demontbreun is entitled to credit for his $2,000 payment to Ms. Mitchell in February
1991 and to a $971 credit based on Ms. Mitchell’s miscalculation of the total of loans
made in 1993. However, he is not entitled to a $500 offset for a portion of the
wedding expenses.      Therefore, based on Ms. Mitchell’s testimony that Mr.


                                         -8-
Demontbreun owed her $6,775, we have determined that the record supports
awarding her $4,304. Accordingly, we reduce the general sessions court’s $6,200
award to $4,304.


                                         VI.
                 MS. MITCHELL’S LEGAL EXPENSES ON APPEAL


      The general sessions court awarded Ms. Mitchell $2,500 to defray her legal
expenses at trial. Now she asserts that Mr. Demontbreun should be required to pay
her legal expenses for this appeal. Awards of this sort are treated as additional
support, see Smith v. Smith, 912 S.W.2d at 161; Gilliam v. Gilliam, 776 S.W.2d 81,
86 (Tenn. Ct. App. 1988), to be awarded when the spouse seeking them lacks
sufficient funds to pay his or her legal expenses or would be required to deplete
resources in order 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).


      There is nothing in the record showing that Ms. Mitchell is unable to pay her
legal expenses. She is currently employed and testified that she will be able to
increase her earnings once she receives her office management certificate. When Mr.
Demontbreun repays his debt to her in full, her assets will be restored to their amount
prior to the marriage. We find no economic disparity justifying the imposition of
attorney’s fees on appeal.




                                        VII.


      We affirm the judgment as modified herein and remand the case to the general
sessions court for further proceedings consistent with this opinion. We tax the costs
in equal proportions to William B. Demontbreun and his surety and to Kathy Jo
Mitchell for which execution, if necessary, may issue.




                                               _____________________________
                                               WILLIAM C. KOCH, JR., JUDGE


                                         -9-
CONCUR:


_________________________________
BEN H. CANTRELL, JUDGE


_________________________________
WALTER W. BUSSART, JUDGE




                               -10-
