Jerry Lynn Shorter v. Margaret Mae Shorter - Concurring

• Court: Court of Appeals of Tennessee
• Decided: November 23, 1998
• Docket: 03A01-9802-DR-00054
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE F IL E D N o v e m b e r 2 3 , 1 9 9 8

C e c il C r o w s o n , JERRY LYNN SHORTER, ) C/A NO. 03A01-9802-DR-00054 J r .

) A p p e lla t e C o u r t C le rk Appellee, ) MORRISOWN DOMESTIC RELATIONS ) v. ) HON. JOYCE M. WARD, ) JUDGE MARGARET MAE SHORTER, ) ) AFFIRMED AS Appellan t. ) MODIFIED

JERR Y LY NN S HOR TER , pro se..

DENISE TERR Y STAPLETO N, TERRY, TERR Y & STAPL ETON, Morristown, for Appellan t.

O P I N IO N

Franks, J.

In this divorc e action the T rial Court de creed the p arties’ separate

marital property, divided the marital estate, and granted the parties a divorce pursuant

to T.C .A. §36 -4-129 (b).

The wife has appealed and raises these issues:

1. The Court erred in not awarding alimony.

2. The Court erred in not equitably dividing the marital estate; and

3. The Court erred in not making an equitable distribution of the husband ’s military retirem ent. The parties were married in 1980 while the husband was in the United

States Air Force, and separated in September 1993 in Frankfurt, Germany, where the

husband was stationed. No children were born of this marriage, but the wife had a son

by a pre vious m arriage .

The parties traveled extensively during the marriage, due to the

husband’s career. In 1991, while the parties were in Florida, they separated and the

wife filed for a divorce, but the parties reconciled and moved to Germany to further

the husband’s career. The husband returned to the United States in 1995, while the

wife remained in Germany.

The wife has a high school education, and when the parties were first

married the wife worked in a clothing factory and at a convenience store. While the

parties were in Germany, the wife became employed as a civilian with the Department

of Defense, where she works in the produce department of the commissary. She earns

$10.29 per hou r at this job and rec eives a h ousing allowa nce fro m the g overnm ent.

The husband retired from the military in June of 1996, after a 20 year career in the

military, and receives a retirement benefit of $1,138.00 per month for the remainder of

his life. He now works for the Department of Defense in California, where according

to the evidence his take home pay is $1,187.00 every two weeks, based on $23.25 per

hour.

The Trial Court refused to award alimony on the basis that the parties

have been living apart and both were self-supporting. The wife insists that

rehabilitative alimony should have been awarded, and we agree.

While Trial Co urts have broad discretion a s to whether to aw ard

alimon y, Lloyd v. Lloyd, 860 S.W .2d 409, 41 2 (Tenn. A pp. 1993 ), where a s pouse is

econom ically disadv antaged, reh abilitative alim ony is app ropriate, if rehab ilitation is

feasible. T.C.A. §36-5-101.

2 The wife is economically disadvantaged compared to her husband. The

parties were married fo r sixteen years, and during m ost of the marriage the w ife

followed the husb and around the w orld in furtherance of the hus band’s military

career. She followed him to Germany, where she still remains, because she has a job

there, but she has not been able to acquire any specialized training in part, due to her

frequent moves. Currently she works as a clerk for the produce department of the

commissary in Frankfurt, Germany, earning $10.29 an hour. She lives in government

housing which has government furniture. She does not have any family in Germany

and wishes to return to the United States, but she opined that she did not believe she

could find a compa rable job in th e United S tates. We b elieve rehab ilitative alimon y is

appropriate to enable her to learn a skill which would materially aid her in finding

employment in the United States to support her needs. Accordingly, upon remand, an

order will be entered awarding the wife rehabilitative alimony for a period of 36

months at $500.00 per month.

Next, the wife contends that the division of the marital estate was

inequitable. The Trial Court was required to make an equitable division of the marital

proper ty, whic h is not n ecessa rily an eq ual divis ion. See Watters v. Watters, 959

S.W.2d 585, 591 (Tenn. A pp. 1997 ). The Trial C ourt stated tha t it intended to

essentially make an equal division of the marital property, and concluded that such

division would be equitable. Both parties offered opinions of the value of the several

items of marital property which differed in amount. The Trial Court, with the

exception of automobiles, did not place a dollar value on the respective items of

marital property awarded to each party. Using the husband’s value of assets, the

husband was awarded property in the amount of $92,511.00. Using the wife’s value

of the assets, the husband was awarded property valued at $95,136.00. Using the

3 wife’s valuation but adding in the wife’s retirement account, which was not listed but

properly a part of the marital estate, the wife was awarded property in the amount of

$85,188.00, and using the husband’s evaluation, including the retirement account, she

was awarded $94,988.00. We conclude that the marital settlement made by the Trial

Judge was eq uitable, a nd we decline to mak e any a djustm ents in th ese aw ards.

Finally, the wife argues that she did not receive an equitable distribution

of the husband’s military retirement. Vested retirement plans constitute marital

proper ty, subje ct to equ itable dis tribution . Cohen v. Cohen, 937 S.W.2d 823, 825

(Tenn. 1996). Only rights which accrue during the marriage will be considered

marita l prope rty. Kendrick, 902 S.W.2d 926, T.C.A. §36-4-121(b)(1)(B). Pension

rights must be valued “as of a date as near as possible to the final divorce hearing

date”. Kendrick at 927, T.C.A. §36-4-121(b)(1)(A). The Trial Court, in awarding the

wife 25% of the pension benefits, found that the parties had lived together as man and

wife for approximately ten of the twenty years the husband was in the military, and

awarded the w ife 50% of the ben efits accruing during that time p eriod. The wife

argues pension rights accrued during the sixteen years they were married, and that

those pension rights shou ld be considered m arital property. We agree with the wife

that all pe nsion rig hts accr uing du ring a m arriage are clas sified as marita l prope rty.

See Kendrick, 902 S.W .2d at 926. H oweve r, after the ma rital property c lassification is

determined, the remaining issue is what is an equitable division of that portion of the

marital property. We cannot say the Trial Judge abused her discretion as a matter of

equity, in not awarding one-half of the pension which accrued during the marriage,

since arguably the w ife was making no contribution to the m arriage during the years

they were living apart. Accordingly, we affirm the Trial Judge on this issue.

We affirm the judgment of the Trial Court, as modified, and remand

with one-half of the cost assessed to each party.

4 __________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Don T. McM urray, J.

___________________________ Charles D. Susano, Jr., J.