KATHY GALE (PHILLIPS) BENNETT,            )
                                          )
      Plaintiff/Appellee,                 )
                                          )   Appeal No.
                                          )   01-A-01-9501-GS-00006
VS.                                       )
                                          )   Wilson General Sessions
                                          )   No. 3973
WILLIAM THOMAS BENNETT,                   )

      Defendant/Appellant.
                                          )
                                          )                  FILED
                                                              Sept. 20, 1995

                     COURT OF APPEALS OF TENNESSEE           Cecil Crowson, Jr.
                                                              Appellate Court Clerk
                       MIDDLE SECTION AT NASHVILLE



APPEALED FROM THE GENERAL SESSIONS COURT OF WILSON COUNTY
AT LEBANON, TENNESSEE

THE HONORABLE ROBERT HAMILTON, JUDGE




JESSICA DAWN DUGGER
109 Castle Heights Avenue North
Lebanon, Tennessee 37087
      Attorney for Plaintiff/Appellee

MICHAEL W. FERRELL
3125 N. Mt. Juliet Road
P. O. Box 8
Mt. Juliet, Tennessee 37122
       Attorney for Defendant/Appellant




                             AFFIRMED AS MODIFIED
                                AND REMANDED




                                              BEN H. CANTRELL, JUDGE


CONCUR:
LEWIS, J.
KOCH, J.
                                  OPINION


              This case involves a divorce ending a marriage of short duration. The

General Sessions Court of Lebanon, Tennessee granted the divorce to both parties,

dividing the marital property between them, and ordering the husband to pay $100 per

month in rehabilitative alimony for fourteen years. The husband appealed, arguing

that the trial court erred in dissolving the parties' marriage without reference to fault,

in its division of marital property, and in ordering the payment of alimony. The wife

appealed the trial court's refusal to grant her claim for attorney fees.



              We affirm the trial court's judgment on those matters. However, we

believe the trial court erred in overruling the husband's post-judgment motion to Alter

or Amend, wherein he asked that the court permit the $20,000 lump sum payment

required of him to be commuted into four annual installments of $5,000 each. We

accordingly grant the husband's motion.



                                            I.



              William Bennett and Kathy Phillips married in April of 1990. The

marriage was his fourth and her third. Mr. Bennett had two grown children by an

earlier marriage. His new wife had three teenage sons at home. Two months after

the parties were married, Mrs. Bennett was diagnosed with multiple sclerosis, an

incurable and progressively debilitating disease, which affects eyesight, hearing,

mobility and cognition. Though the decree of divorce has now restored her maiden

name to the wife, in the interest of clarity we will refer to her throughout this opinion

as Mrs. Bennett.




                                          -2-
              Mr. Bennett was attentive to his wife's medical needs. He gave her

massages, took her to the doctor, kept her supplied with necessary medications, and

purchased specialized therapeutic equipment for her. However, as her physical

condition deteriorated, so did the parties' relationship.



              They separated in September of 1993, with Mrs. Bennett moving into her

own apartment. In November, she filed for divorce, alleging inappropriate marital

conduct by Mr. Bennett. The following month, Mr. Bennett filed his answer and

counter-claim, denying that he was guilty of inappropriate marital conduct, and

alleging inappropriate marital conduct on the part of his wife.



                              II. The Question of Fault



              The inappropriate marital conduct alleged by the wife mostly had to do

with Mr. Bennett's irritability and his outbursts of anger. Mrs. Bennett, who had

formerly been a very active woman, became unable to keep up with the housework.

Her sons kept their rooms messy, and did not help very much. Mr. Bennett frequently

became angry and yelled at them, and cursed. The wife's youngest child related one

incident when Mr. Bennett struck him with a belt. Antagonism between Mr. Bennett

and his wife's children created strains between the husband and wife. Their sexual

relationship was adversely affected by tensions in the household as well as by the

progression of the wife's disease.



              Mr. Bennett also vented his anger against his wife, though apparently

this occurred less frequently than with the children. The wife testified that he

sometimes became verbally abusive when her friends called her on the phone at

night. On one occasion he overheard her talking about her problems on the phone,

and yelled and cursed at her, wanting to know who she was airing their dirty laundry




                                          -3-
out to. Mrs. Bennett had been talking to her mother long distance, and her mother

heard his cursing. After this incident, Mrs. Bennett decided she wanted a separation.



              The husband alleged that as the marriage relationship deteriorated, the

wife began an extra-marital affair with her first cousin, a man named Bob Phillips. The

wife testified that Mr. Phillips had been known as the black sheep of the family, but

that he changed his ways. In August of 1993, Mr. Phillips began visiting the parties

on a regular basis, sometimes bringing his two young children, who were born from

a long term relationship with his former girlfriend.



              Mr. Phillips would come by in the evening to talk with Mrs. Bennett.

When Mr. Bennett left the house to go to his night shift job at T.V.A., Mr. Phillips

would remain. When Mr. Bennett returned in the morning, the wastebaskets were

filled with empty beer cans. Mrs. Bennett admitted drinking with her cousin on some

of these occasions, even though alcohol was incompatible with her medication. Mr.

Phillips spent the night twice in the Bennett home while Mr. Bennett was at work, but

Mrs. Bennett's children testified that he slept in the living room while Mrs. Bennett

slept in her own room. Mrs. Bennett admitted that after the parties separated, Mr.

Phillips and his children stayed at her apartment on weekends, but she denied having

an affair with him.



              The deposition of Mr. Phillips' former girlfriend (and the mother of his

children) was admitted into evidence over the objections of Mrs. Bennett's attorney.

The deposition stated facts that implied an improper relationship between Mr. Phillips

and Mrs.Bennett prior to her marriage to Mr. Bennett. The attorney for Mrs. Bennett

argued that any allegations concerning Mrs. Bennett's conduct prior to the marriage

was irrelevant to the divorce proceedings. The attorney for Mr. Bennett contended

that such evidence was necessary to rebut the inference that the the cousins enjoyed

nothing more than a normal family relationship.


                                          -4-
                If the husband's allegations of marital infidelity by the wife are true, then

the wife's behavior would certainly support the grant of a divorce to the husband. But

it would not necessarily compel such a result. If the allegations are untrue, it would

still be fair to say that the wife is at fault, because her conduct increased the tensions

in the already strained marriage by introducing suspicion and jealousy into the

relationship.



                Unfortunately, the trial court stated no findings of fact in relation to the

allegations made by the husband, so we do not know upon what basis he decided to

grant a divorce to both parties without reference to fault.



                But even though the Final Decree of Divorce made no mention of fault,

we believe that the evidence shows that both parties must bear some responsibility

for the collapse of their marriage. Where both parties are guilty of acts that may

constitute grounds for divorce, the trial court can grant the divorce to the less guilty

party, see Hazard v. Hazard, 833 S.W.2d 911, 913 (Tenn.App. 1991), but it need not

do so, as the Tennessee statutes offers another option. Tenn. Code Ann. § 36-4-

129(b) reads in part:



                The court may . . . upon proof, 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.



                We believe this statute gives the trial court broad discretion to choose

whether or not to weigh the relative fault of the parties in fashioning a divorce decree,

even if one party is totally without fault. The trial judge in this case did not abuse that

discretion in granting a divorce to both parties without reference to fault.



                                        III. Alimony



                                            -5-
              The husband also contends that the trial court erred in ordering him to

pay alimony to his former wife. He argues that in a marriage of short duration, the trial

court should give less consideration to the needs of the dependent spouse, if those

needs are not greater than they were at the time of the marriage, and that

proportionally greater consideration should be given to the ability to pay of the obligor

spouse.



              Mr. Bennett asserts that even without alimony, divorce has left his

former wife in no worse condition financially or physically than when the parties

married. He claims that Mrs. Bennett was already suffering symptoms of illness

related to her multiple sclerosis prior to their marriage, symptoms that he alleges she

concealed from him.



              Even if Mr. Bennett's allegations are true, we believe that the proof

shows that Mrs. Bennett's needs have increased as a result of the continuing

progression of her disease, and that her ability to meet those needs has declined.

Though she has apparently gained some control over the symptoms of the disease

through the use of the drug Betaseron, she still has problems with her kidneys, with

balance and walking, and with her eyesight. With the loss to her of Mr. Bennett's

family medical insurance under T.V.A., she must now find another way to pay the

$900 monthly charge for continued Betaseron injections.



              Mrs. Bennett is now unable to support herself by full-time work, but

depends upon a monthly social security disability check to pay her expenses. Most

recently, her check amounted to about $1200, which included a social security

supplement for two of her children (whose father is deceased). She also receives a

modest child support check from an ex-husband for her youngest child. Payments on

behalf of the children will cease when they reach the age of eighteen. Her social

security check will then be reduced to $366 per month.


                                          -6-
              Prior to her marriage, Mrs. Bennett worked full-time for three years at

Precision Cable in Gallatin. She also has had training as an LPN, and worked at

Sumner County Regional Medical Center. The record does not contain precise

figures on her earnings in those positions, but even if she received minimum wage,

she clearly earned more than is provided by her portion of her current disability check.



              Mr. Bennett is a twenty-three year veteran employee of T.V.A. In 1993,

his gross income from his job amounted to about $49,000, which included payment

for overtime work. The base pay for his current position is $42,390 per year. While

he is not wealthy, there is no doubt that he is financially far better off than is Mrs.

Bennett.



              Admittedly, the marriage and divorce has had an adverse effect on Mr.

Bennett's finances. He assumed and paid Mrs. Bennett's pre-marital debts in the

amount of $1,258. He will also be responsible for all the debts incurred during the

marriage, including much that is attributable to treatment of the wife's condition. One

notable item is a specially-designed therapeutic chair for which the wife agreed to

make payments when it was purchased. The husband will now be responsible for

paying off the $1,822 still owing on the chair. Nevertheless, we believe he still has the

ability to pay the minimal amount of alimony ordered by the trial court, and there can

be no doubt as to her need for it.



                             IV.   The Property Division



              The husband takes issue with the trial court's grant of $20,000 to the

wife as her share in the appreciation of his T.V.A. retirement plan and 401(k) plan.

He does not dispute, however, that both plans appreciated in value during the course

of the marriage. We note that Tenn. Code Ann § 36-4-121(b)(1)(B) reads:




                                          -7-
              "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. (emphasis supplied).



              The court has the right to "equitably divide, distribute or assign the

marital property between the parties without regard to marital fault in proportions as

the court deems just." See Tenn. Code Ann. § 36-4-121(a).



              The appreciation in the husband's vested retirement benefits amounted

to almost $49,770, but the trial court noted that the retirement money was not

currently reachable by the husband, and that early withdrawal from the 401(k) plan

would result in the imposition of penalties and the payment of taxes. He accordingly

awarded the wife slightly less than a one half share of the appreciation in the

accounts.



              The husband insists that the property division should be controlled by

the case of Batson v. Batson, 769 S.W.2d 849 (Tenn. App. 1988). In that case, the

trial court awarded the husband the entire amount of his retirement benefits, including

its appreciation during the course of the marriage, and this court affirmed the award.



              However, the husband fails to note that we also found that the trial court

had misclassified the appreciation in the retirement accounts as the husband's

separate property, when by the operation of Tenn. Code Ann. § 36-4-121(b)(1) it

should have been classified as marital property. Batson at 856-857. In affirming its

division of the marital property, we noted that Tenn. Code Ann. § 36-4-121(a) "gives

the court wide discretion to adjust and adjudicate the parties' rights and interests in

all jointly owned property." Batson at 859.




                                         -8-
              Dr. and Mrs. Batson were each enrolled in retirement plans. Their

marital estate included two condominiums and two promissory notes derived from the

sale of two different residences that the parties lived in during their marriage. The trial

court's decision to grant Dr. Batson the appreciation in his IRA and Keogh plans was

part of a comprehensive effort to equitably divide all the marital property, while

disentangling the financial affairs of the parties so they could get on with their lives.

Mrs. Batson received other financial assets from the marital estate (including a note

for over $44,000 and the appreciation in her own retirement plan) to balance the loss

to her of a portion of Dr. Batson's retirement.



              In the case before us, the appreciation in the husband's retirement

accounts is the only substantial financial asset of the marital estate. Tenn. Code Ann.

§ 36-4-121(b) obligates the trial court to consider all relevant factors in making an

equitable division of marital property, and lists some of those factors, including "[t]he

age, physical and mental health, vocational skills, employability, earning capacity,

estate, financial liabilities and financial needs of each of the parties." In light of these

factors, we do not believe the trial court abused its discretion in granting Mrs. Bennett

$20,000 as her share in the appreciation of Mr. Bennett's retirement accounts.



                          V. The Motion to Alter or Amend



              We do think, however, that the trial court erred in denying Mr. Bennett's

motion to be allowed to pay his $20,000 obligation in four annual installments of

$5,000 each. Other provisions of the divorce decree have left Mr. Bennett with an

obligation to pay almost $28,000 for the debts incurred during the marriage, a

substantial portion of which are directly related to his wife's medical needs.



              The funds in Mr. Bennett's retirement plan are not yet available to him.

His 401(k) plan has a value of about $15,000, and is subject to an indebtedness of


                                           -9-
$8,500. If he liquidates the plan, he will have to satisfy that indebtedness and pay

income taxes, social security, and a 10% penalty for early withdrawal of the money.

That will leave only about $2,000 to be applied to the obligations flowing from the

divorce.



              Mr. Bennett's other substantial asset is his home, in which his equity is

about $20,000. He plans to sell the home, but after paying a real estate commission

and other expenses involved with the sale, he would probably net about $15,000. He

owes $5,000 on a home equity line of credit that would also have to be repaid, leaving

him with only about $10,000 after the sale, and with a need to secure other housing.



              Thus, it is clear to us that his obligations far exceed his current ability to

pay, and that by forcing him to pay $20,000 in a lump sum, we would be imposing

great financial hardship upon him. We accordingly grant his motion to be allowed to

pay his obligation in four annual installments.



                                  VI. Attorney Fees



              Mrs. Bennett argues that the trial court erred in not awarding her the

attorney fees she incurred at the trial level. She also asks this court to assess her

attorney fees on appeal against her former husband.



              In divorce actions, the trial court is vested with wide discretion in the

allocation of attorney fees. Threadgill v. Threadgill, 740 S.W.2d 419, 426 (Tenn. App.

1987). We note that the wife has incurred attorney fees in the amount of $2,355 at

the trial level, an amount that she will able to pay from her share of the marital

property. We find that the trial court did not abuse its discretion in requiring each

party to be responsible for that party's own attorney fees.




                                          - 10 -
                                        VII..



             We affirm the judgment of the trial court except for its denial of the

husband's Motion to Alter or Amend, which we reverse. This cause is remanded to

the trial court for further proceedings consistent with this opinion. Tax the costs on

appeal equally between the appellant and the appellee.




                                         _________________________________
                                         BEN H. CANTRELL, JUDGE


CONCUR:



_______________________________
SAMUEL L. LEWIS, JUDGE


_______________________________
WILLIAM C. KOCH, JR., JUDGE




                                        - 11 -
