Earls v. Earls, M1999-00035-COA-R3-CV

• Decision Date: 20 June 2000
• Docket Number: No. M1999-00035-COA-R3-CV,M1999-00035-COA-R3-CV
• Citation: 42 S.W.3d 877
• Court: Tennessee Court of Criminal Appeals
• Parties: CLARK MATTHEW EARLS v. SHIRLEY ANN EARLS

42 S.W.3d 877

CLARK MATTHEW EARLS

v. SHIRLEY ANN EARLS

No. M1999-00035-COA-R3-CV

COURT OF APPEALS OF TENNESSEE, MIDDLE SECTION, AT NASHVILLE

June 20, 2000, Decided

SUBSEQUENT HISTORY: 42 S.W.3d 877 at 910.

PRIOR HISTORY: Direct Appeal from the Circuit Court for Williamson County. Russ Heldman, Judge. No. II-98458.

DISPOSITION: Ms. Earls' petition for rehearing denied.

JUDGES: KOCH, J., delivered the opinion for the court, in which CAIN, J. and COTTRELL, J. joined.

OPINION BY: KOCH

OPINION OPINION DENYING PETITION FOR REHEARING

Shirley Ann Earls has filed a petition pursuant to Tenn. R. App. P. 39 requesting this court to reconsider portions of its May 31, 2000 opinion. Even though the petition raises issues that have already been carefully considered by each member of the court, the nature of the case prompts us to file this opinion elaborating on our initial opinion.

Each member of the court has read the entire record on appeal and is fully aware of the unfortunate and difficult circumstances in which Clark Earls and Shirley Earls find themselves. Our original opinions reflect our best efforts to employ traditional legal principles to do justice between these two persons in light of our understanding of the facts and the current governing law. Our opinions also reflect our recognition of the practical limitations on both trial and appellate courts when they undertake to sort out and rearrange the personal and financial relations of parties whose marriage is irretrievably broken. Judges cannot rekindle love and affection once it has been extinguished. Nor can they provide assets or income that the parties themselves do not have. Nor can they restore to good health persons who bodies have been broken by unexpected catastrophic injury. Judges must take the parties as they find them and must consider the facts of each case objectively. They must also apply the applicable legal principles to these facts in a disciplined, dispassionate way. The three opinions filed in this case on May 31, 2000 reflect that each member of the court has discharged this obligation.

I. THE PROPRIETY OF THE DIVORCE

Ms. Earls first asks us to reconsider the majority's conclusion that the facts supported entering an order in accordance with Tenn. Code Ann. § 36-4-129 (Supp. 1999) declaring the parties divorced. This request stems from Ms. Earls' belief that the majority has embraced the concept of "no fault" divorce and that the record contains no evidence of a series of misconduct on her part that provides Mr. Earls with grounds for divorce. Ms. Earls is mistaken on both counts.

The majority's opinions do not depart from traditional legal principles to embrace the concept of "no fault" divorce. Neither the majority opinion nor the concurring opinion can reasonably be construed to hold that parties may be divorced without some proof or stipulation of one or more of the statutory grounds for divorce or that trial courts must grant a divorce every time the parties themselves have agreed that continued cohabitation is unacceptable. To the contrary, all three opinions filed on May 31, 2000 rest on the following settled, well-recognized principles:

(1) that a divorce must rest on one of the statutory grounds for divorce, see Clothier v. Clothier, 33 Tenn. App. 532, 538, 232 S.W.2d 363, 366 (1950);

(2) that trial courts should be afforded wide latitude to determine whether the parties in a particular case should be divorced, see Marmino v. Marmino, 34 Tenn. App. 352, 355, 238 S.W.2d 105, 107 (1950);

(3) that appellate courts must review a trial court's findings of fact in a divorce case using the Tenn. R. App. P. 13(d) standard of review, see Hansel v. Hansel, 939 S.W.2d 110, 111 (Tenn. Ct. App. 1996); and

(4) that Tenn. R. App. P. 36(a) empowers appellate courts reviewing decisions in divorce cases to grant the relief, consistent with the facts and the applicable law, to which the parties are entitled. See Wade v. Wade, 897 S.W.2d 702, 715 (Tenn. Ct. App. 1994); Mondelli v. Howard, 780 S.W.2d 769, 772-73 (Tenn. Ct. App. 1989).

As Judge Cottrell points out in her concurring opinion, this court's differences revolve around the issue of whether the record contains sufficient evidence of inappropriate marital conduct by both parties to warrant declaring the parties divorced in accordance with Tenn. Code Ann. § 36-4- 129. Judges Koch and Cottrell have answered this question in the affirmative; while Judge Cain has answered it in the negative. Accordingly, Judge Koch's and Judge Cottrell's opinions stand for only two propositions - first, that the evidence preponderates against the trial court's findings that the record contains no evidence of inappropriate marital conduct by Ms. Earls and that Ms. Earls would be "more aggressive in pursuing reconciliation" if Mr. Earls' divorce petition was dismissed and second, that these two persons should be declared divorced in accordance with Tenn. Code Ann. § 36-4-129 based on the facts of this case and the applicable state law. Judge Cain disagrees with the former proposition but would agree with the latter if he was convinced that the record contained evidence of inappropriate marital conduct on Ms. Earls' part.

Each member of the court has again reviewed the record and counsel's representations during oral argument in light of Ms. Earls' insistence that the record contains no evidence of a series of marital misconduct on her part that would warrant declaring the parties divorced. All judges adhere to their original decisions. Judges Koch and Cottrell again conclude that the record contains evidence of Ms. Earls' behavior over a sustained period between March 1997 and July 1998 that caused pain and anxiety to Mr. Earls and that rendered continued cohabitation unacceptable. For his part, Judge Cain adheres to his conclusion that the record contains no evidence of fault on Ms. Earls' part. Accordingly, the majority's conclusion remains that the record contains evidence of inappropriate marital conduct by both Mr. and Ms. Earls and, therefore, that the trial court should have declared them divorced in accordance with Tenn. Code Ann. § 36-4-129.

II. SPOUSAL SUPPORT

Ms. Earls also takes issue with aspects of the decision regarding spousal support. She asserts that the court did not give appropriate weight to her prospects for rehabilitation, her predicament should her parents become unable to assist her, and the prospect that she will be required to obtain additional public assistance in the future. Each of these possibilities - and many others - were considered by the court during our original analysis of this case.

Our consideration of the support issue began with recognizing that the trial court's judgment would have rendered Mr. Earls financially unable to support himself. In the process of addressing this problem, we took into consideration Ms. Earls' current physical condition, the duration of the marriage, the division of the marital assets and debts, and the other applicable factors contained in Tenn. Code Ann. § 36-5-101(d) (Supp. 1999). We determined that the evidence does not support a conclusion that Ms. Earls will be capable of rehabilitating herself to the point where she could be financially self-sufficient. Accordingly, we declined to characterize the spousal support we awarded as "rehabilitative alimony." Rather, we fixed a definite amount of future support to be paid in monthly installments as authorized by Tenn. Code Ann. § 36-5-101(a)(2)(A). 5 After considering...