### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE May 13 , 2003 Ses sion VICKIE LYNN NA SH v. THOMAS STEP HEN NASH Appeal from the Circuit Court for Knox County No. 86733 William K. Swann, Judge FILED JULY 18, 2003
No. E2002-01597-COA-R3-CV

This appeal of

a judgment for divorce entered by the Knox County Circuit Court questions whether the Trial Court erred in its classification and divisionof a 401(k) retirement account and in its award of rehabilitative alimony. We af firm in part, modify in part and r emand. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d in Part and Modified in Part; Cause Remanded

H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P
. F RANKS and D. M ICHAEL S WINEY , JJ., joined.
Jerrold L . Becke

r, Knoxville , Tennes see, for the Appellant, Tho mas Stephe n Nash
John D. Lockridg e, Knoxville , Tennes see, for the Appellee, Vic

kie L ynn Nash
OPINION
The Appellant, Thomas Stephen Nash, and theAppellee, Vickie Ly nn Nash, were re-married in June of 1997 after a

prior div orce. H owever , this marr iage a lso failed and, after a trial on March 6, 2002, the parties were granted a divorce on the grounds of irrec oncilable differences by judgment entere d June 18, 20 02. Among other things the ju dgment p rovides a s follows:
5. RETIREMENT : The wife shall receive her 401(k) e ntitlementin it s e nt ir et y, and one-third of the appreciation in the husband's 401(k) that accrued during the time of the marri age . The wife shall receive the sum of $23,226.20 from the husba nd's 401(k). The Husband shall execute all do c uments ne cessar y to effectuate this transfer.

...-2-

8. ALIMONY : The [husband] will pay the [wife] rehabilitative alimony in the amount of $400 .00 per month for forty -eight months, beginning April 1, 2002, and payable e ach month thereafter. Subseque nt to the e ntry of this fin al judgm

ent Mr. Na sh filed timely notice of appeal.
The issue s addres sed in this o pinion ar e resta ted as fo llows:
1. Did the Tr

ial Court im

properl y classify a por

tion of Mr. Nash's 401(k) account as marital pr op er ty?
2. Did the Tr

ial Court e

rr in awa rding Ms . Nash

any portion

of Mr. Na sh's 401 (k) acc ount?
3. Di d t he Tr ia l C ou rt er r i n a wa rd in g M s. Na sh re ha bi li ta ti ve al im on y?
Our stand ard of r

eview in t his non-ju

ry case is de novo upon the rec ord of the pr oceedi ngs below and ther

e is no presumption of correctness with respect to the Trial Court' s conclusions of law. Campbell v. Florida Steel Corp. , 919 S.W.2d 26 and T.R.A. P. 13(d). The Trial Court's factual findi ngs are, however, presumed to b e correc t and we must affirm such findings absent evidence preponderating to the contrary

. Union Carbide Corp. v. Huddleston , 854 S.W.2d 87 (Tenn. 1993).
The first issue we address is whether the Trial Court improperly classified a

portion of Mr. Nash’s 401(k) account as marital property

. On June 30, 1997, two days after the pa rties’ second marriage, Mr. Nash, who was employ ed withAmeristeel, had contributed to a 401(k) account which wa s then valued at $55,802.27. On March 4 , 2002, two days befor e the divorce hearing, this 401(k) was va lued at $125,480.88 . Th e record shows that the monies in Mr. Nash’s 401(k) were held as share s of Fidelity Puritan Fund a nd Fidelity Magell an Fund m

utual funds. That portion of the 401(k) account consisting of shares of the Fidelity Puritan Fund wa s valued at $31,655.90 on June 30, 1997, and at $80,972.36 on March 4, 2002, while that portion of the account co nsi sting of shares of the Fidelity Magellan Fund was valuedat $24,146.37 on the former date and at $44,508.52 on the latter date. Although the value of bothfunds inc

reased during t he perio d of the pa

rties’ ma rriag e, Mr . Na sh contends that all contributions made during that time were applied only to the Fidelity Magellan Fund, that no contributions were applied to the Fidelity Puritan Fund and tha t the increased

value of the Fide lity Puritan Fund resulted exclusively fr om market performance.
Based upon the value of Mr. Nash’s 401(k) account on June 30, 1997, and its value on March 4, 2002, the Trial Court found that during the course of the parties’ marriage the value of the 401(k)1 Although the T rial Co urt states in its memorandum opinion t hat t he enhanced va lue of

the accoun t was “s ome $70,000. 00 over the course of the marr iage” it is evi dent from t he st ated valu e of t

he acc ounton Jun e 30, 1997, and on March 4 , 2002, that the specif ic amount of enhancement was $69,678.60 and that the Trial Court cal culated its award of $2 3,22 6.20 to M s. Na sh ba sed u pon this amo unt. -3- was enhanced by

$69,678.61 1 and, as noted, awarded one third of this amount, or $23,226.20, to Ms. Nash. Mr. Nash argues that the Court erred in c lassifying this $69,678.61 as mar i ta l p ro pe rt y, asserting that the f

unds alloc ated to the Fid elit y Puritan Fund wer e not increased by

contributions during the pa rties ’ re-ma rriage and th at all enhan cement in th e valu e of th at fun d duri ng the m arriage was due to mar

ket pe rformance. Accordingly , Mr. Nash maintains that the amount by whic h the Fidelity Puritan Fund increased du ri ng th e m ar ri ag e s ho ul d b e c la ss if ie d a s h is se pa ra te pr op er ty, rather than marital property

. In its memora

ndum opinio n the Trial Court stated its finding that “[t]he husband’s enhancement

to his 401(k) has occurred because of his annua l contributions and by the opera tion of marketing forcesfor which neither party can take credit.” The Trial Court does not appear to have made any finding

as to how the contributions made during the parties’ marriage we re allo cated betweenthe Fidelity Puritan Fund a nd the Fidelity Mag ellan Fund. Although Mr. Nash asserts that the appreciation of the Fidelity Puritan Fun d was en tirely the result of mar ket performance, our review of the record doe s not disclo se evidenc e support ing that assertion. While Mr. Nash testified that, during t

he perio d of the pa

rties’ ma rriag e, the ap

precia tion of the

401(k) a ccount w as d u e to allowedcontribu

tions and market c onditions, we find n othing in his testimonywhich indicates that the appreciation in value of the Fidelity Puritan Fund wa s wholly

attributable to market performance and that no contributions made to the 401(k) account during the marriage were alloca

ted to that fund. Statemen ts from Mr. Nash’s employ er, Ameristeel, show that from April 1, 1997, to June 30, 1997, and from January 1, 2002, until March 4, 2002, a ll contributions to the 401( k) were allocated to the Magellan Fund and , becau se no con tributio ns were made to the Fid elity Puritan F

und, we mu st necessa rily conclude that any

enhancement in the v alu e of the F idelity Puritan F

und during

these p eriods of time is attributable to market performance alone. Of course, the period of t

ime befor e June 30, 1997, preceded th e partie s’ marri age a

nd the inc rease in the account which occurred then does not constitute marital property a nd is not at issue. Other than the statement showing the allocation of contributions to the 401(k) account from January 1, 2002, until March 4, 2002, there is no proof in the re cord as to the amount of contributions made to the 401(k) or as to how contributions to the ac count we re alloc ated dur

ing the p arties’ marriage. Given this lack of evidenc e, we cannot say that c ontributions were not made to both the Fidelity Ma gellanFund and

the Fide lity Puritan Fund during the period of the parties’ mar riage.
Mr. Nash cites the case of Langschmi dt v. Langs c hmidt , 81 S.W.3d 741 (Tenn. 2002) wherein the Supreme Court held that the appreciation of a husband’ s separa

te investm

ent acc ounts remains separa

te property whe

n the appreciation is entirely market driven and the other spouse does not substantially contribute to the preser vation and appreciation of the accounts. As stated, wedo notfind evidence that the appreciation of the Fidelity Puritan Fund wa s entirely marke t driven in the case before us. We also

note that the husba

nd’s inve stment ac counts in Langschmi dt consiste d, in-4-

part, of individual retirement accounts. T.C.A. 36- 4-121(b)(1)( B) provides for the inclusion of the value of retirem ent benefits during the ma rriag e as mar

ital prope rty as follow s: (B) ‘Marital property’ includes income from, and any

increa se in

value during the marri age of, prope

rty determined tobe separ

ate prop erty

in accor dance w ith subdivision (b)(2) if each par ty substantially contributed to its preservation and appreciation, and the value of vested and unvested pension, vested and unvested stock option rights, retirement or oth er frin ge benefit rights relating

to employ ment that accrued during the period of marriage . (Emphasis added.)
The Langschmi

d t Co urt determined that, because the husband’s individual retirement accoun ts were fu

nded with

premar ital asse ts, the acc ounts were not retirement benefits and, therefore, were not marital property under T.C.A. 36-4-121(b)(1)(B). I n reaching this determination the Court cited, at page 749, the following lang uage from its previous holdingin Cohen v. Cohen , 937 S.W.2d 823, (Tenn. 1996): [t]o the extent e arned du

ring the marriag e, the be

nefits represent compensation for marital effort and are substitutes for current ea rnings which

would have increased the m arital standar

d of living

or would h ave bee

n conver ted into oth

er asse ts divisible at dissolution .... [R]etirement benefit s have been described as part of the c onsideration earned by an employee, [] and as a form of deferred compensation provided by the employer for work already

performed.
T he individual retirement accounts in Langschmi dt did not qualify as retire men t benefi t s under the Cohen analysis. Howeve r, the proof in the instant matter does not warrant a finding that the Fidelity

Puritan F

und was f unded sole

ly with prema

rital ass ets in con

trast to th e accou nts in Langschmidt

. It i s possible th at contributions were made to the Fidelity Puritan Fund during the parties’ marriage. I

f so, such contributions represent “deferred compensation” “whic h would have increased the marital standard of living or would hav e been c onverte d into othe r assets d ivisible at dissolution” and would constitute marital property under T.C.A. 36-4-121(b)(1)(B). Accor di ng ly, we cannot say that the e vidence preponderates ag ainst the Trial Court’s classification of the ap pr ec ia ti on of

th e f un d d ur in g t he pa rt ie s’ re -m ar ri ag e a s m ar it al pr op er ty.
At the trial of this ca se Ms. Nash sought one-half of the approximately $70,000.00 by which Mr. Nash’s 401(k) account had increased during the marital period. As noted, the Court awarded Ms. Nash one third of this increased value. Ms. Nash states in her brief that the Court did not err in awarding her one third of the account and states that “the [C]ourt spec ifically

applied t he princ ipals of equitable distribution by awarding [Mr. Nash] the lion[’s] share of said ac coun t.” Mr. Na sh disagrees and argu es tha t the T rial C ourt e rred i n award ing any portion of his 401(k) accoun

t to Ms. Nash based upon proper application of those factor s set out as follows at T.C.A. 36-4-121(c):-5- (c) In m aking equitable division of marital property , the court sha l l consi der all releva nt fact ors in cludi ng: (1) The duration of the marriage ; (2) The age, phy sical and mental health, vocational sk il ls , e mp lo yab il it y, earning ca pa ci ty, estate, financi al liabilities and financial needs of each of the parties ; (3) T he tangible or intangible contribution by one (1) party

to the ed uc at io n, tr ai ni ng or in cr ea se d e ar ni ng po we r o f t he ot he r p ar ty; (4) T he rela

tive ability o f each p arty

for futu re acqu isitions of capital a ssets and income; (5) The contribution of each party to the acquisition, preservation , appreciation, depreciationor diss ip at io n o f t he ma ri ta l o r s ep ar at e p ro pe rt y, including the contribution of a party to the marriage as homemaker, wa ge earner or parent, with the contribution of a party as homemaker or wage ea rner to be given the same weight if eac h party has fulf

illed its role; (6 ) T he va lu e o f t he se pa ra te pr op er ty o f e ac h p ar ty; (7) The estate of each party at the time of the marriage; (8) The economic

circumstances of each party at the time the division of property is to become

effective; (9) The t ax consequences to each party , costs associated with the reasona bly foreseeab le sa

le of the a sset, and o ther

reas onab ly

fore seea ble exp ense s associa ted with the asset; (10) The amou

nt of soci al secur

ity b enefits a

vailable to each spouse; and (11) Such other factors as are necessary to consider the equities between the part ies.

As to the first factor, it appears that the parties’ marriage was of short duration as stated at trial by Ms. Nash’s attorne y. The par

ties were married approximately four years a nd nine month s. They were se parate d for a po

rtion of th e marria ge, alt hough they

are not in agreement asto whether they separated in June of 2000, as asserted by Ms. Nash, or in May of 1999, a s asserted by Mr

. Nash. The Trial Cour

t was una ble to make a finding as to precisely when the parties separated nor are we. Suffice it to say that the parties wer e separated for

at least twenty one months or, at most, thirty four months, of the period of their marriage.
As to the secondfactor, at the time of the divorce both Mr. and Ms. Nash were for ty six y ears of age and, app arently

neither party had hea lth proble ms. We find no evidenc e rega rding th e partie s’ vocational skills. Both parties were employ ed at the time of the divorce.
Ms. Nash earns $13.00 per hour, or approximately $29,000.00 pe r year, a s an administrative assistantwi th Pi lo t O il Co mp an y wh er e s he ha s b ee n e mp lo ye d since Ma rch of 19 98. Ms. Na sh testifies that, bec ause she

was able to work ov ertime, s he earn ed $30,49 3.37 in

1999 and $35,137.43 in 2000 and in 2001 she

earned $51,828.1 2 becau se she wa s able to work add itional shi fts as a r

esult of her employer ’s merger with another company . However, Ms. Nash maintains that she was present at a senior officers mangers meeting and was told t hat she would not r

eceive more tha n her bas e-6-

salary of $29,000.00 during the year of trial below. Ms. Nash’s affidavit of income and expenses shows that her monthly net income amounts to $1 ,375.00 (presumably ba sed upon her salary of $29,000 per yea

r) and her monthly e

xpenses total $1,807.00 resul ting in a monthly deficit of $432.00. Ms. Na sh tes tifies that in the past she has supplemented her income by cleaning houses for which she has e arned $2 00.00 per month; howe

ver, thissuppleme

ntal employme

nt is spora

dic and she te stifies th at she did not clea n houses in

1999, 2001 or 2002. M s. Nash a lso testif ies that, as of the time of the divorce, she had applied for a second job at a hardware store.
Mr. Nash earns a base salary

of $52,500.00 per ye ar from his employment with Amer

isteel, and he earned an additional $30,000.00 in 2001, apparently a s a result of bonuses he was awarded. Mr. Nash’s affida

vit of inco me and expe

nses show s that his ne

t monthly income a

mounts to $4,882.75 and that

his monthly expenses total $3,547.57 resulting in a monthly gain of $1,335.18. No evidence was presented as to fac tor number three.
As to factor number

four, Mr. Nash concedes that he “probably has a greater ability

for acquiring capital assets and income.”
With respect to factor nu mberfive, we note that the contributions to Mr. Nash’s 401(k) account came sol e ly f

rom his inc ome. Howe ver, Ms. N ash contr

ibuted to th

e marria ge as a homemaker

by cooking , cleaning and

caring for the parties’ son who wa s fourteen at the time of their marriage. F or the first nine months of the marriage Ms. Nash perf ormed these duties alone and maintained the house

hold while Mr. Nash was out of town on business. Once she began working the part i es shared the household responsibilities. Ms. Nash testified that prior to the time of the parties’ separation she used the income from her job to pay for g

roceries, utilities and

to purcha se clothing for herself and gasoline for he r car. She also testified that she used her ear nings to r efurbis h the house. Although she did not contribute directly to Mr. Nash’s 401(k) account, the monies she expended for the items noted necessarily left more of Mr. Nash’s income available for contributions to such ac count.
As to factor number six, Mr. Nash co ncedes t hat he ha s a gre ater se

parate estate th an Ms. Nash. Regardingfactor

number seven, it appears from the evidence that, at the time of

the marriage, Mr. Nash held, as previ ously noted, $5 5,000.00 in his 401(k ) accou nt and tha t he owne d the house in which the parties lived, it having been awarded to him in their previous divorce.
With respec t to facto

r number eight, t here wa s signif

ic ant dispa

rity betwee n the eco nomic circumstances of Mr. and Ms. Nash at the time

of division

of prope rty , as evidenc ed by

their affidavits of monthly income a nd expenses as already

noted above.
We find no evidence in the record as to factors nine a nd ten.-7-

Mr. Nash cite s Batson v. Batson , 769 S.W.2d 849 (Tenn. Ct. App. 1988) for the proposition that “[i]n cases involving a marriage of relatively short duration, it is appropriate to divide the propert y in a way that, a s nearly a s possible, places the parties in the same position they would have been in had the marriage never ta ken place.” Mr. Nash asserts that Ms. Nash’s ec onomic condition actual ly improved after her June 1997 marriage because of her discharge of $65,000.00 in deb t throu gh bankruptcy in 1997 and because, although she was unemploy ed at the time of her marriage, she found employment

with Pilot Corporation in March of 1998 at a salary of $24,800.00 per ye ar and, at the time of trial earned $29,000.00. However, we are compelled to note tha

t, accor ding to Ms. Nash’s unrefute d testimony , she file d for ban kruptcy in May of 1997 wh

ic h was prior to her marri age and there is no reason to believe that her debts would n ot have been discharged had the marri age never taken place. We also note the following testimony of Ms. Nash which shows that she was earning substantially more money in the job

she left just prior to her marriage to Mr. Nash: Q In Jun e of ‘97 short ly prior t o your mar riage, w here we re you resi ding?
A In Nashville. Q Why Nashville?
A That’swhere I

had emplo yme

nt. Q Were you employ

ed at the time you all g ot remarried?
A I have a two-w eek notice prior to returning to Knoxville. Q And by whom wer

e you employ

ed there? A Bry ers Health Care. Q Approximately how much were you earning

there? A 42,000.
Neither her discharge of past debt in 1997 nor the fa ct of her e mploy ment with Pilot Corporation belie the fact that Ms. Nash is currently economically disadva

ntaged. Her affidavit of monthly expenses reveals no extravagances and Mr

. Nash presents no basis for concluding that such expenses were other than reasonable.
Mr. Nash also

cites Batson, ibid. for the proposition that “when a marriage is sho rt, th e significance and value of a spouse’ s non-monetary c ontributions is diminished, and claims by one spouse to another spouse’s separate property are minimal at best.” We have considered the brevity of the marriage as well as the p eri od of separation, as did the Trial Court. We find that the Trial-8-

Courtaward

is sufficiently discounted under the circumstances in that Ms. Nash was awarded one third, rather than one half, of the increased value of Mr. Nash’s 401(k) account.
A trial court is allowed wide di sc re ti on as to th e m an ne r i n w hi ch it di vi de s m ar it al pr op er ty. Smithv. Smith , 984 S.W.2d 6 06 (Tenn . Ct. App. 1 997). Our analy sis of this case

in the cont ext of those statutory factor s set forth at T.C.A. 36-4-121(c) convinces us that the Trial Court did not abuse its discreti on inawarding Ms. Nash o ne third o f the enh anced v alue of M r. Nash’ s 401(k) a

ccount. The final issue we address is whether the Trial Court erred in awarding Ms. Na s h rehabilitative a

limony in the amount of $400 .00 per mo nth for f orty eight mo nths.
Just as a tria l court is allow ed a lar ge am ou nt of di sc re ti on in it s d iv is io n o f m ar it al pr op er ty, it is also allowed a large amount of discretion in determining a proper awar d of alimony. Hanover v. Hanover , 775 S.W.2d 612 (Tenn. Ct. App. 1989). Factor s which a trial cou rt should c onsider i n determining the proper form and amount of spousal support are set forth at T.C.A. 36-5-101(d)(1) as follow s: (A) The relative earning capa city, obligations, needs, and financial resources of each party, including income f rom pensi on, profi

t sharing or retir ement pla ns and all other sou rces; (B) The relative education and training of e ach party , the ability and oppo rtunity of each party to secure such ed ucation and training, and the necessity of a party

to secure further education and training to improve

such par ty' s earnin g capa

city to a rea sonable l evel; (C) The duration of the marriage; (D ) T he ag e a nd me nt al co nd it io n o f e ac h p ar ty; (E) Th e p hys ic al co nd it io n o f e ac h p ar ty; including, b ut not limited to, physical disability or incapacity d

ue to a ch ronic de bilitating disease ; ( F) The extent to which it would be undesirable for a party to seek employment outside the hom e because such party

will be custodian of a minor child of the marriage; (G) The separate assets of ea ch party, both re al and personal, tangible and intangible; (H) The provisions made with regard to the mar ital property as de

fined in § 36-4-121; (I) The standar

d of living of the parties established during the marr iage; (J) The extent to which each party has made such ta ngible and intangible contributions to the marri age as moneta

ry and homemaker co ntribution s, and tangible a nd intangible cont

ributi ons by a p ar ty t o t he ed uc at io n, tr ai ni ng or in cr ea se d e ar ni ng po we r o f t he ot he r p ar ty; (K) The relative

fault of t he parti es in cas es wher

e the cou rt, in its discreti on, deemsit approp riate to do so; and (L) Such othe

r facto rs, including the tax consequences to each party , as are necessary to consider the equities b etween

the part ies. Obviously, there is substantial overlap betwee n these statutory factor s and those factors set forth at T.C.A. 36-4-121(c) relative to the proper division of marital pr op er ty. Ac co rd in gl y, several of these factors have already been discussed relative to the circumstances pre sent in this case.-9-

With respec t to facto

r (A), a s previou sly

noted, the record indicates that Mr. Nash’s earning capaci ty far exceeds that o f Ms. Nash. Mr. Nash’s earnings in the y ear prior to the divorce totaled approxima

tely $80,000.0 0, consist

ing of hi s base salary

of $52,500.00 plus the amount of his bonus for that year. Ms. Na sh earns a base salary of $29,000.00. A lthough she has been able to earn additional monies in th

e past, pr imarily by working overtime, Ms. Nash testified that, at least in the year of her divorce, she had reason to believe that she would not be earning more than her base salary in her job at Pilot Corporation. While Mr. Nash argues that Ms. Nash has the ca pacity to ear

n greater income b y taking a second jo

b, he pre sents no evidence as to wha

t jobs she mi ght be q

ualified to perfor m, the availability of such jobs or how much such jobs would pay. As to the obliga tions, needs and financial resources of each party , we have already observed that, based upon the information set forth in their affidavits of income and expenses, Mr. Nash realizes a net g ain eac h mont h of $1,335.18 while Ms. Nash experiences a monthly deficit of $432.00.
With respect to factor (B), the parties apparently

do not dispute the Trial Court’s finding that eachof them has two yea

rs colle ge educati on. No pro of was pr esented regar ding the training of Ms. Nash or the ne cessity

that Ms. Na sh secur

e furthe r educa tion or tra

ining in o rder to im

p rove he r ea rn in g c ap ac it y. Factors (C),(D) and (E) have already been discussed and factor (F) is not applica ble.
As to factor (G), the record shows that Mr. Na sh’s separate property consists of

a bedroom suitewith astipul ated v alue o f $4,8 00.00 , the m arita l resi dence u pon wh ich he makes mortga ge pay ments, a 1995 Subu

rban aut omobile, a

nd the Ame

risteel 4 01(k) ac count whi ch was wo rth approxima

tely $55,000.00 at the time of marriage. The separa te prope rty of Ms. Na sh as shown i n the record consists of household goods valued at $1,000.00, bank a ccounts containing appro ximately $1,700.00, a condominium upon which she makes mortgage pay ments, and a

401(k) a ccount w ith her employer

valued at $3,000.00 in September of 2001. With respect to factor (H), the marital property of apparent monetary

value was divided as follows. Ms. Nash recei ved an antiqu e table valued at $100.00, phonograph rec ords valued at $200.00 and china, crystal and silver se rving pi eces of

unspecif ied value . And, as noted, Ms. N ash re ceive d one third

of the ap

precia ted value of Mr. Na sh’s 401(

k) acco unt which

amounted

to $23,226.20. Mr. Nash received a larg e screen television which he purchased for $2,000.00 in 2001, a nd a 1 995 Jeep wh

ich was purchased used in 19 98 for $12 ,000.00 a nd upon wh

ich he wa s still making payments at

the time of divorce. Mr. Nash was also, as previously noted, awarded two thirds of the amount by which the Ame risteel 401(k) account was enhanced dur ing the marriage, whic h award totaled $46,452.40. Regardingfactor

(I), we find no evidence as to the standard of living the par ties established during the marriage.-10-

We have alread

y noted the pa

rties mone

tary and homemaker co ntribution s to the ma rriage relevant to factor (J). We find no evidence as to any contributions by either party

to the education, training or increased earning power of the other. As to factor (K), it does not appear that the fault of the parties was at issue in this case and we find no evidence in the record with reg ard to this factor.
Fi na ll y, with respect to factor (L ), we note that

the Trial Court ordered

that Mr. N ash pay

Ms. Nash’s attorney

fee related to this divorce in the amount of $2,500.00.
This Court has hitherto recognized that, although all of the factors under T.C.A. 36-5-101(d) must be considered in arriving at a decision regarding spousal support, “[i]n virtually every c ase, the two most important factors are thedemonstrated need of the disadvantaged spouse and the obligor spouse’s ability to pay .” Anderton v. Anderton , 988 S.W.2d 675 (Tenn. Ct. App. 1998).
Our analysis of thi s c ase convinces us that Ms. Nash is economically disadvantaged. As stated, her month

ly e xpenses, w

hich we f ind to be r

easonab le, exceed her mont hly net income by $432.00. We recog

nize that th

is calculation is based upon her base income of $29,000.00 and that she has in prior yea

rs earned monies in excess of that amount. However, it appear s thatin order to earnthis additi onal inco me she wa s compelled to work overtime and additional shifts and take on additional jobs in addition to the full time position she already held . Even should we

find that i

t is reasonable that Ms. Nash go to such lengths to meet her day to day expenses, we are

compelle d to pointout that she was only able to wor k the additional shifts which allowed her to earn $51,000.00 in 2001 because of a company merger and

she te stifi ed th at the

next year she would not earn more than her base salary

. We also note that, just prior to her marriage Ms. Nash was e arning $42,000.00 a year in Na shville and that she gave up that job and moved to Knoxville upon her marriage to Mr. Nash. There isno questio n as to Mr. Nash’s a bili ty to pay . As noted, he realizes a net gain each month of $1,335.18, has greater ear ning capacity

and the value of

his assets is substantially grea ter.
On the other hand, we recognize that Ms. Nash wa s awarded $23,226.20 as her share of the increased value of Mr. Nash’s 410(k) account, the entire account balanc e of her own 401(k) account which amounted

to approximately $3,000.00 and she reta ins $1,700.00 in person al bank a ccounts. We also note that, while Ms. Nash’s base salary is currently insuffic ien t to all ow her to meet her monthly expenses, her job is apparently secure and her base salary has been raised

from $24,800.00 since she began

her employment in Marc

h of 1998 and will pr

esumably increa se in the f

uture. Whi le we find that M s. Nash is e ntitled to a certain amount of rehabilitative support, we believe that the amount awarded by

the Trial Court is somewhat excessive , e sp ec ia ll y in light of the financial resources she has been awarded and also in light of the undisputed brevity of the mar riage. Ac co rd in gl y, we modify

the Tria l Court’s o

rder by awarding Ms. Na sh rehabilitative alimony in the amount of $400.0 0 per mont

h for twe nty four mont

hs rathe r than fo rty eight months. We believe that, under the

circumst ances, t his modified award , along withthe other

resourc es avail able toher, will be sufficient to achieve the purpose of reha bilitative alimony as described by our Supreme Court in Robertson v. Robertson , 76 S.W.3d 337 (Tenn. 2002) at page 340-341:-11-

...[R]ehabilitative alimony may assist the disadvantaged s po use in obtaining further education or training. (citations omitted). "Rehabilitative alimony serves to support an economically dependent spouse 'through a limited per iod of reeducation or retra

ining fo llowing d

iv orce , thereby c

reating incentive and opportun ity

for that spouse to become self-supporting." I t may also provi d e temporary

income to support the disadvan tage d spouse during the post-divorce economic adjustment. (citations omitted) For the foregoing r

easons the judgment of the Trial Court is affirmed in part and modified in part as set forth herein. This case is remanded f or such further proceedings, as may be ne ce ss ar y, and for collection of costs below. Costs of appeal a re adjud ged eq ually to Vickie Ly nn Nash a nd to Th om as St ep he n N as h a nd hi s s ur et y.

_________________________________________ HOUSTON M. GODDARD, PRESIDI NG JUDGE