# FILED

August 5, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

JOHN ANDERSON KINARD, ) ) Plaintiff/Appellee, ) Rutherford Chancery ) No. 94DR-318 VS. ) ) Appeal No. LINDA KINARD, ) 01A01-9606-CH-00265 ) Defendant/Appel

lant. )



### APPEAL FROM THE CHANCERY COURT FOR RUTHERFORD COUNTY AT MURFREESBORO, TENNESSEE

THE HONORABLE ROBER T E. CORLEW, III, CHANCE LLOR

For Plaintiff/Appellee : For Defendant/A ppellant : Dicken E. Kidw

ell J. Russell Heldman Murfreesboro, Tennessee Franklin, Tennessee



## AFFIRMED AS MODIFIED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

### -2- 

## O P I N I O N

This appeal involves a divorce ending a l ong-ter m marriage. The h usband filed suit to divorce his wife of thirty yea rs in the Chancery Court for Rutherford County, and the wife counterclaimed for a divorce from bed and board. The trial judge, sitting withouta jury, declared the parties divorced, divided the marital property, and awarded the wife rehabilitative alimony for three years. The wife takes issue on this appeal with the decision to declare the parties divorced, the division of marital property, and the failure to award her long-term spousal support and attorney’s fees. She also insists that t he trial judge shou

ld have recused

himself because

of his p rio r professional association with th e husband’s lawye

r. We conclude t

hat the tria

l judge was not disqualified from hearing this case. While we also f ind that declaring the parties divorced was proper, we have de termin ed that the division of marital property and the spousal support award should be modified but that

the wife should not receive an additional award for her legal ex

penses.

I.

Lind a Kinard a nd John A. Kinard were married in August 1964. Mr. Kinard is a licensed pharmacist. Ms. Kinard was a school teacher when the parties married

but, at Mr. Kinard ’s request, she left teaching af

ter the first

year of the marriage when she became pregnant with the first of their two children. The co

uple bought their f

irst pharmacy several years later. Today, the business, Drug Centers, Inc., ha

s grown into a chai

n of nine drugstore

s.

Marital difficult

ies began to surfa

ce in 1992 when the par

ties’ last child left home and Mr. Kinardreduced Ms. Kinard’s role in the business. In March 1994, after thirty years of marriage, Mr. Kinardfiled suit in the Chancery Court for Rutherford County seeking a divorce from Ms. Kinard basedon irreconcilab

le difference

s and inappropria

te marital conduc

t consisting of inter

fering with his business and making unfounded accusations about his fidelity. Ms. Kinard counterclaimed for
a divorce from bed and board. Following a bench trial, the trial judge declared the parties divorced in accordance with Tenn. Code Ann. § 36-4-129(b) (1996), divided the marital estate

, awarded Ms. Kin ard rehabili tative spousal supp ort of $1,000 per m

onth for thirty-six

months, and denied

Ms. Kinard’s request for an additional award for her attorney’s fees.

Ms. Kinard retained a new lawyer after the trial ju

dge announced hi

s decision. Within th

irty days after the entry of the final divorce decree, Ms. Kinard’s new lawyer filed motions requesting the trial judge to alter or amend the divorce decree, to g r ant a new trial, a

nd to recuse himse

lf because of his prior professional relationship with Mr. Kinard’s lawyer. Following a hearing, the trial judge denied the r

ecusal motio

n as well as Ms. Kinard ’s request for a n interlocutory a

ppeal. Ms. Kinard has now perfected this appeal as of right in whi ch she r aises numerous objections relating to the manner in wh ich the divorce w

as granted, the d

ivision of the marit

al property , th e spousal support aw

ard, and the tria

l judge’s refusa

l to order Mr. Kina

rd to pay her lega

l expenses.

### -3- II. S UPPLEMENTATION OF THE R ECORD

Before proceeding fur

ther, we turn our

attention to

the evidentiary record. Following the entry of the final divorce de cree and the de

nial of the Tenn. R.

Civ. P. 59 motions, the t rial ju dg e permitted Ms. Kinard to reopen the record to present additional testimony that she would have given at trial had she been represented by her present lawyer. We must determine whether this novel processis contemplated or permitted by the Tennessee Rules of Civil Procedure because the answer to this question will dictate the facts that we will consider in rendering this decision.

After the trial judge denied Ms. Kinard’s post-trial motions and her m otion for an interlocutory appeal, her

present lawyer requested permission to make a

n “offer of proo

f” because the denial of Ms. Kinard’s motion for a new trial meant that she would not be“back at square one” and would not be giv

en an “opportunit

y to start over.” As

best as we can understand her lawyer’s reasoning, he wished to take Ms. Kinard’s deposition in order to preserve for appellate review the substance of additional testimony that she would have gi ven at a second trial had the trial judge recused himself and granted a new trial. The lawyer believed that this testimony would somehow become relevant if

this court later determined that the trial judge should have recused himself. The trial judge agreed

to allow this “offer of

proof” over Mr. Kinard’s objection. In May 1996, fully ten months after

the original divorce trial and four months after the denial of the post-trial m

otions, Ms. Kinardgave a

deposition answering questions from her present lawyer that her former lawyer had notasked her in

the original proceeding. This deposition is now a part of the appellate record even though it was never presented to or considered by the trial judge.

We can find no precedent for this novel post-trial fact gathering. Rather than being an offer of proof in the traditional sense, it is more accurately an attempt to include testimony in

the appellate record that was not considered by the trial judge in the first instance. The reasons for Ms. Kinard’s failure to present this testimony at trial are not altogether clear. Ms. Kinard does not, and based on the nature of the tes

timony cannot, cla

im that h er after -the-fact testi mony concerned n

ewly discovered

information. We can only conclude that Ms. Kinard’s present lawyer decided that her former lawyer should have asked her these questions at trial and that he decided to ask the questions himself even though the case had already been concluded.

We have determined that the substance of Ms. Kinard’s May 1, 1996 deposition should not be considered on this appeal. Our jurisdiction is appellate only. See Tenn. Code Ann. § 16-4- 108(a)(1) (1994); Duncan v. Duncan , 672 S.W.2d 765, 767 (Tenn. 1984); Mallicoat v. Poynter , 722 S.W.2d 681, 682 (Tenn. Ct. A pp. 1986); Foley v. Dayton Bank & Trust , 696 S.W.2d 356, 359 (Tenn. Ct. App. 1985). While we review factual findings by a trial judge sittingwithout a jury de no vo with
a presumption of cor

rectness in acc

ordance with Ten

n. R. App. P. 13(d), w

e do not customaril

y consider eviden

ce that has neithe

r been presente

d to nor considered by the trial judge unless it has1 Tenn. Const. art. 6 , § 11 provides, in pa rt: No Judge of the Supr

emeor Inferior Courts shall preside on the trial of any cause in the eve nt of which he [or she] may be interested, or where either of the parties shall be connecte

d with him [or her] by affinity of con sanguinity, within

such degrees as may be prescribed by law, or in whi ch he [ or she] may have been of counsel, or in which he [or she] may have pr

esided in any inferior Cour

t, except by consent of all the

parties.

2 See Tenn. S. Ct. R. 10, Canon 2(A). 

### -4- been made part

of the record in accordance with Tenn. R. App. P. 14. Because the trial judge never considered Ms. Kinard’s May 1, 1996 deposition, we decline to consider it now.

There is a second reason

for declining to c

onsider Ms. Kinard’s May 1, 19 96 deposition. Ms. Kinard’s lawyer b elieved that the deposition would be needed o

nly if an appellat

e court were to de termi ne that the trial judge should have granted a new trial and then recused himself. As we discuss more fully

in Section III, we have

determined that th

e trial judge did no

t err by declining

to
recuse himself from the c

ase. Accordin

gly, th ere is no need to c

onsider Ms. Kinar

d’s answers to questions that her

former lawyer f

ailed to ask her a

t trial.

III. T HE T RIAL J UDGE ’ S D ISQUALIF ICATION

We turn now to the question of the trial judge’s qualification to hear this case. After the trial judge had entered

the final divorce decree, Ms. Kinard’s present lawyer insisted that he should have granteda new tria l and then stepped aside because of his prior professional relationship with Mr. Kinard’s lawyer. We have determined that th

e evidence does

not provide a rea

so na ble basis for questioning the trial judge’s impartiality.

A.
Litigants, as th e courts have often said, are entitled to the “cold neutrality of an impartial court.” See Leighton v. Henderson , 220 Tenn. 91, 98, 414 S.W. 2d 419, 421 (1967); Chumbley v. Peoples Bank & Trust Co. , 165 Tenn. 655, 659 , 57 S. W.2d 787, 788 (1933). The principle of judicial neutrality is embodied in both Tenn. Const. art. 6, § 11 1 and in the Code of J udicial Conduct. 2 Thus, one of the central tenets of our jurisprudence is that all litigants have a right to have their cases hea

rd by fair and impa

rtial judges.
The courts have also recognized, however, that the preservation of the public’s confidence in judicial neutrality requires not only thatthe judge be impartial in fact, but also that the judge be perceived to be impartial. See Offutt v. United States , 348 U.S. 11, 14, 75 S. Ct. 11, 13 (1954) (holding that “justice must satisfy the appearance of justice”); In re Cameron , 126 Tenn. 614, 658, 151 S.W. 64, 76 (1912). Thus, even when a judge believes that he or she can hear a case fairly and impartially, the judge should recuse himself or herself if “the judge’s impartiality might reasonably3 See Alvarado Morales v. Digital Equip. Corp. , 699 F. Supp. 16, 18 (D .P.R. 1988); Dolphin

v. Wilson , 942 S.W.2d 815, 817-18 (Ark. 1997); Ferren v. City of Sea Isle City , 580 A.2d 737, 739- 40 (N.J. Super. Ct. App. Div. 1990).

4 See National City Bank v. Shortridge , 691 N.E.2d 1210, 1211 (Ind. 1998).

5 See Bonelli v. Bon

elli, 570 A.2d 189, 192 (Conn. 1990).



### -5- be questioned.” See Tenn. S. Ct. R. 10, Can on 3(E)(1); Chumbley v. Peoples Bank & Trust Co. , 165 Tenn. at 659, 57 S.W.2d at 788.

The decision of wheth

er recusal is

warranted must in the first instance be made by the judge himself or herself. Unle

ss the grounds for r

ecusal fall

within those enumer

ated in Tenn. Const.

art. 6, § 11 or Tenn. Code Ann. § 17-2-101(1994), these dec isio ns are discretionary. See State v. Raspberry , 875 S.W.2d 678, 681 (Tenn. Crim. App. 1993); Memphis Bd. of Realtors v. Cohen , 786 S. W.2d 951, 953 (Tenn. Ct. A pp. 1989); Wiseman v. Spaulding , 573 S.W.2d 490, 493 (Tenn. Ct. App. 1978). However, instead of making this decision based on s ubjective notions of his or her impartiality, a judge must be more objective and must ask what a reasonable, disinterested person knowing all the re levant f acts would think about his or her impartiality. See Alley v. State, 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994).

A party may lose the

right to challenge

a judge’s impartia

lity by engaging in st

rategic conduct. Courts frown upon the manipulation of the impartiality issue to gain procedural advantage andwill not permit litigants to refrain from asserting known grounds for disqualification in order “to experiment

with the court . . . andraise the object ion later when the

result of the trial is unfavorable.” Holmes v. Eason , 76 Tenn. (8 Lea) 754, 757 (18 82); see also Gotwald v. Gotwald

, 768 S.W.2d 689, 694 (Tenn. Ct. App. 1988). Thus, recusal motions must be filed promptly after the facts forming the basis for the motion become known, see United States v. Baker , 441 F. Supp. 612, 616 (M.D. Tenn. 1977); Hunnicutt v. Hunni cutt , 283 S.E.2d 891, 893 (Ga. 1981), and the failure to assert them in a timelymanner results in a waiver of a p arty’s right to question a judge’s impartiality. See In re Cameron , 126 Tenn. at 663, 151 S.W. at 78; Radford Trust Co. v. Lumber Co. , 92 Tenn. 126, 136- 37, 21 S.W. 329, 331 ( 1893); Holmes v. Eason , 76 Tenn. (8 Lea) at 761.

B.

The fact that a judge was once professionally associated with a lawyer for one of the parties in a case is not, without mor e , grounds for disqualification. See ABA Comm. on Ethics and Pro fessional Responsibility, Informal Op. 87-1524 (1987). Thus, in the absence of o the r disqualifyi ng circumstances, courts have cons

istently conclude

d that a judge is not d

isqualif ied whe n the la wyer for one of the parties is a former law partner, 3 associate, 4 or co-counsel. 5 A judge is likewise not disqualified solely because he or she may at o ne time have had an office sharing arrangement

with a lawyer for one of

the parties. See Savani v. Savani , 403 S.E.2d 900, 903 ( N.C. App. 1991). When a

motion for disqualification based on a judge’s former association with a party’s lawyer is filed, the totality of the circumstances should be examined, includi ng the following fa

ctors:6 The trial judge would have been requ ired to recuse himself if he had still had an office

sharing arrangement with Mr. Kinard’s lawyer when Mr. Kinard filed for divorce. See Tenn. S. Ct. R. 10, Canon 3(E)(1)(b) requiring disqualification if “a lawyer with whom the jud ge previously practiced law served during such association as a lawyer concerning the matter.” 

### -6- (1 ) the nature and e

xtent of the prior

association, (2)

the length of time si

nce the associat

io n wa s terminated, (3) the possibility that the judge might continue to benefit from the relationship, and (4) the existence of per

sonal or social re

lationsh ips springing from the professional relationship. See Bonelli v. Bonelli , 570 A.2d at 192; James v. James , 656 N.E.2d 399, 404-05 (Ohio Ct. App. 1995).

The trial judge and the lawyer representing Mr. Kinard had an office sharing arrangement lasting two years that ended eight years before Mr. Kinard sought a divorce from Ms. Kinard. The trial judge had severed

all financial tie

s with Mr. Kinard’s law

yer two years be

fore the divorce

suit
was filed when he sold the lawyer his interest in the building that housed their offices. There is no suggestion in the record that the trial judge stands to benefit in any way from Mr. Kinard’s lawyer’s practiceor that he was eve r involved in the pr

ese nt case o r any other matter related to the present
case. Mr. Kinard’s law

yer did not undertake to r

epresent him in

this divorce proceeding until long after his professional relationship with the trial judge had ended. 6 There is likewise no indication in the record that any social or personal relationship that might exist between the trial judge and Mr. Kinard’s lawyer

prevented the tr

ial judge from bein

g impartial.
Thus, Ms. Kinard is left w ith only one circumstanceto substantiate her claim that the trial judge should have disqualified himself from hearing this case. She asserts that a reasonable person would conclude that th

e trial judg e could not be impartial because he had an office sharing arrangement

with Mr. Kinard’s lawyer duri ng a portion of the time that Mr. Kinard’s lawyer was representing Mr. Kinard in a lawsuit entirely unrelated to this div orce case. This relationship is simply too attenuated to draw suc h a conclusion. There is no evidence in the record that the trial judge played any role in or received any benefit from the earlier litigation on behalf of Mr. Kinard. Considering the totality of the circumstances, we find that a r ea sonable person, knowing all the relevant facts, would not conclude that the trial judge could not be impartial. Accordingly, the trial judge did not abuse his disc retion by denying M

s. Kinard’s rec

usa l m otion after the final divorce decree had been entered.

IV.

T HE A WARD OF THE D IVORCE TO B OTH P ARTIES

Ms. Kinard also takes issue with the tr ial judge’s decision to grant both parties a divorce pursuant to Tenn. Code Ann. § 36-4-129(b) instead of assigning fault to Mr. Kinard. She argues that the record contains ample evidence of Mr. Kinard’s fault, including his emotional and verbal abuse. Mr. Kinarddoes not deny that his conduct contributed to the dissolution of the ma rriage but points to the evidence of

Ms. Kinard’s inap

propriate condu

ct occurring pri

marily after their son left home.7 This property includes (1) real pro perty in Starkville, Mississippi, (2) the Dean Witter

stocks, (3) Ms. Kinard’s jewelry, (4) the parties’ crysta l, sliver, and chin

a, and (5) the 10-

year-old Mercedes. Ms.

Kinard asserted that this property was worth $146,435; while Mr. Kinard placed a value of $146,500 on the property. 

### -7- Little can be gained from reciting the details of these parties' complaints about the other’s conduct during the waning years of the marriage. Ms. Kinard testified to two incidents in which Mr. Kinardwas physically, verbally, and emotionally abusive. Mr. Kinard explained how Ms. Kinard’s suspicions and jea

lousy prompted her

to disrupt his

business by calling his employees to question themabout his wherea

bouts and his conduc

t with his female e mployees. After reviewing the evidence de nov o in ac cordance with Tenn. R. App. P. 13(d), we cannot say that the evidence preponderates against the trial judge’s conclusion that both parties contributed to the breakup of the marriage and, therefore, that they should simply be dec lared divorced in accordance with Tenn. Code Ann. § 36-4-129(b).

V. T HE D IVISION OF THE M ARITAL E STATE

We turn now to the divisi on of the parties’ not i nsubstan tial marital estate. Ms. Kinard assertsthat the overall division of the estate is inequitable and that the trial judge incorrectly valued the Drug Centers, Inc. note. Our review of this issue has been hampered by the trial judge’s failure to properly classify the property and to place a value on the property whose valuewas disputed. We have determined that

the division of the marital estate must be modified to correct the valuation and classification errors and to provide a more equitable distribution of the marital property and debts.

A.

The K inards’ marital estate was worth between $600,000 (according to Ms. Kinard) an d $850,000 (according to Mr. Kinard). While Ms. Kinard tended to value marital property lower than Mr. Kinard, the principal reason fo r the difference in their valuation evidence is that Mr. Kinard in cludedapproximately $14 6,500 worth of pro

perty in the marita

l estate that Ms. Kin

ard asse rt s should have been cla

ss ified as her separate property. 7 The principal assets in the estate were the Kinards’ house, a note payable to the Kinards from Drug Centers, Inc., the stock in Drug Centers, Inc., andMr. Kinard’s Drug Centers, Inc. retirement account. The parties disputed the value of the house, the Drug Centers note, and the Drug Centers stock, but

the trial judge did n

ot undertake to resolve this conflicting evidence.

The trial judge adopte

d Mr. Kinard’s pr

oposed division of th

e marital e stat e with one exception. Insteadof awarding Mr. Kinard all of his DrugCenters pension, the trial judge decided that Ms. Kinard should r

eceive thirty pe

rcent of the valu

e of this asset. Recognizing that Mr. Kinard didnot desire Ms. Kinard to share in his pens

ion, the trial judge

gave him the option o

f paying Ms. Kinard$500 for sixty

months instead. Under this arrangement, and using Mr. Kinard’s valuations

### -8-

of the property, Ms. Kinard rec eived prope rty worth approximately $448,150, while Mr. Kinard received property worth approximately $412,850.

In addition to the $146,500 in property that Ms. Kinard asser

ts should have been classified
as her separate pr

operty, Ms. Kinar

d received the ma

rital residence

, the household good

s an d fu rnishings, the Drug Centers note at a reduced face value, thirty percent of Mr. Kinard’s Dr ug Centers retirement, and several other pieces of property. Mr. Kinard rece ived all the Drug Centers stock, Florida real esta

te, a Gatlinburg ti

meshare, the re

maining seventy

percent of his

Drug Centers retirement,

and his gun and coin collections. He also received his interest in his mother’s home on Kay Street.

B.
Dividing a marital estate necessarily begins with the classification of the property as either separate o r marital property. See McClellan v. McClellan, 873 S.W.2d 350, 351 (Tenn. Ct. App. 1993). The definitions of “separate property” and “marital property” in Tenn.Code Ann. § 36-4- 121(b) (1996) provide the ground rules for the task. Once the property has been classified, the trial judge’s goal is to divide the marital property in an essentially equitable manner. A division is not rendered inequitable simply because it is not precisely equal, see Cohen v. Cohen , 937 S.W.2d 823, 832 (Tenn. 1996); Ellis v. Ellis, 748 S.W.2d 424, 427 ( Tenn. 1988), or be

cause each par

ty did not receivea share of every piece of marital property. See Brown v. Brown, 913 S.W.2d 163, 168 (Tenn. Ct. App. 1994).
Dividing a marital estate

is not a mechanical process but rather is guided by considering the factors in Tenn. Code Ann. § 36-4-121(c). Trial judges have wide latitude in fashioning an equitable division of marital property, see Fisher v. Fish er, 648 S.W. 2d 24 4, 246 (Tenn. 1983) ; Brown v. Brown, 913 S.W.2d at 168, a nd appellate cou

rts accord great

weight to a trial judge’s division of marital p roper ty. See Wilson v. Moore, 929 S.W.2d 367, 372 ( Tenn. Ct. App. 1996) ; Edwards v. Edwards, 501 S.W.2d 283, 288 ( Tenn. Ct. App. 1973) . Thus, we will ordin arilydefer t o the trial judge’s decision unless it

is inconsistent with the factors in Tenn. Code Ann. § 36-4-121(c) or is not supportedby a preponderance of the evidence. See Brown v. Brown, 913 S.W.2d at 168; Mahaffey

v. Mahaffey, 775 S.W.2d 618, 622 ( Tenn. Ct. App. 1989) ; Hardin v. Hardin, 689 S.W.2d 152, 154 (Tenn. Ct. App. 1983).

C.

T HE V ALUATION OF THE D RUG C ENTERS N OTE

Bothparties listed a $145,952 note by Drug Centers on their pretrial statements of marital property. At

trial, Ms. Kinard stated that the value of the note remained at $145,952. Mr. Kinard asserted, however, that the amount of the note

should be reduce

d to $98,000 to reflect a $35,000 debt

### -9-

he owed to Drug Centers and $12 ,000 advance of corporate funds used to purchase Ms. Kinard’s Mercedes. The trial judge accepted Mr. Kinard’s testimony concerning the value of the note.

The v aluation of a marital asse t is a question of fa

ct. It is determine

d by considering a

ll relevant evidence, and each party bears the burden of bringing fo rth com petent evidence. See Wallace v. Wall

ac e , 733 S.W.2d 102, 107 (Tenn. Ct. App. 198

7). If the eviden

ce of value is conflicting, the trial judge may assign a value that is within the range o f values supported by the evidence. See Ray v. Ray , 916 S. W.2d 4 69, 470 (Tenn. Ct. A pp. 1995); Wallace v. Wallace , 733 S.W.2d at 107. On appeal , we presume

the trial judge’s factual determinations are correct unless the evidence preponderates against them. See Jahn v. Jahn , 932 S.W.2d 939, 941 (Ten n. Ct. Ap p. 1996).

The exact status of Mr . Kinard’s debt to

Drug Centers was

never fully

developed

at trial. Mr. Kinardadmitted that he could not produce a note evidencing the $35,000 debt . Drug Centers’s December

31, 1993 balance sheet listed a $25,000 receiva

ble from Mr. Kinar

d, but this indebtedn

ess hadbeen reduced to approximately $4,200 by the time the company prepared its September 30, 1994 balance sheet. Mr. Kinard’s own sworn financial statement dated October 17, 1994 did not list any personal debt toDrug Centers. This evidence strongly indicates that if Mr. Kinard ever owed Drug Centers $35,000, he hadrepaid this debt prior to the divorce trial. Accordingly, after reviewing the record in accordance with T enn. R. A pp. P. 13(d), we have determined that the evidence preponderates against the trial judge’s conclusion that the value of the Drug Centers note awarded to Ms. Kinard should be reduced by $35,000.

We have also determined

that the evidence preponderates against the trial judge’s conclusion that the value of the D

rug Centers note

should be further reduced by $12,000. At trial, Mr. Kinard asserted that Drug Centers owned the Mercedes and that the company should be paid $12,000 before transferring the

titleof the car to Ms. Kinard. For her part, Ms. Kinard testified that the Mercedes hadbeen a Christmas gift from Mr. Kinard and even produced a note written by Mr. Kinard stating, “Merry Christmas. A new Mercedes.” Based on this evidence , we f ind that the evidence preponderates in favor of concluding that the Mercedes was a gift to Ms. Kinard, and thus that it was her separate prope

rty. By the same token, any indebtedness to Drug Centers that Mr. Kinard incurred in order to purcha

se this present fo

r his wife should, in

the final analysis , be borne by Mr. Kinard. Thus, the $12,000 is a matter between Mr. Kinard and Drug Centers, and the trial judge erred by reduc

ing the amount of the

Drug Centers note

by that amount.

The trial judge should not have reduced the value of

the Drug Centers n

ote awarded to Ms

. Kinardby $47,000. Accordingly, we amend the property settlement to provide that the Drug Center noteawarded to Ms. Kinard as part of the division of the ma

rital estate

should be valued at its face amount – $145,952.8 I n the preceding section, we concluded that the evidence preponderates in fav or o f concluding that the Mercedes was a gift to Ms. Kinard and, therefore, her separate prope rty. 

### -10- D. T HE C LASSIFICATION OF THE S EPARATE P ROPERTY

We turn nex t to the four remaining items of property that Ms. Kinard asserts were he r separate property even

though the trial judge classified them as marital property. 8 Because the trial judge ado pted Mr. Kinard’s proposed property division, it necessarily adopted Mr. Kinard’s assertio n th at this p roperty should be classified as marital property. We have determined that the evidence preponderates against this conclusion.

An integral part of the p rocess of dividing the property inte

rests of divorcin

g parties is identification and distribution of the parties’ separate property. See Batson v. Batson , 769 S.W.2d 849, 856 (Tenn. Ct. App. 1988). Property should not be included in the m

arital estate

unless a party
can prove that it is marital property as defined in Tenn. Code Ann. § 36-4 -1 21(b)(1)(A). See Cutsinger v. Cutsinger , 917 S.W.2d 238, 241 (Tenn. Ct. App. 1995). Separate property cannot, by definition, be includedin the marital estate, and Tenn. Code Ann. § 36-4-121(b)(2)(D) provides that property acquired by a spouse during a marriage by “gift , bequest, d evise or descen t” is separate property. Thus, gifts by one spouse to another that might otherwise

be considered ma

rital property should be classified as the recipient spouse’s separate property. See Hanover v. Hanover , 775 S.W.2d 612, 617 (Te

nn. Ct. App. 1989); Batson v. Batson , 769 S.W.2d at 859.

The evidence does not support the trialjudge’s conclusion that these four items of

property
were marital property. Ms. Kinard testified without contradiction that she rece ived the c rystal, china, andsilver valued at $20,800 as wedding gifts and then throughout the marriage on special occasions such as her birthday or

anniversary or at Christmas. Both parties testified that Mr. Kinard opened the brokerage acc

ounts at Dean Witter and

J. C. Bradford valued between $45,635 and $51,500 for his wife during the marriage. Mr. Kinard stated that he placed the

se accounts in Ms.

Kinard’s name because she had

complained that she had no assets in her own name. He wrote the followin

g note to Ms. Kinard when he set up the Dean Witter account: “

I have told

Edgar to put this account in your
name – not joint. I can stil

l speak with

him – but it will be your money and decisio

n.” (emphasis in the original). Ms. Kinard’s personal jewelry, valued at $38,000, were likewise

gifts to her during the marriage. The final item of property is the property in Starkville, Mississippi where the parties’ son lives. The parties purchased this property during the marriage and placed the title in the name

of Ms. Kinardand their son. Thus, Ms. Kinard is the owner of record of an undivided one-half interest of this property. Eventhough the property was acquired with marital funds, the fact that it was placed in the name

of Ms. Kinard and her son is strong evidence that the parties intended for this property to be controlled by

Ms. Kinard and her

son rather than by

the parties themse

lves.

### -11- Having reviewed

the e vidence in accordance with Tenn. R. App. P. 13(d), we have determined that the evidence preponderates against the trial judge’s classification of Ms. Kinard’s jewelr y, the crystal, silver, and china, the brokerage accounts, and Ms. Kinard’s interest in the Starkville property as mari

tal property. Whi

le we agree that Ms. Kinard should have received this property, it shou ld n ot have been as pa rt of the division of

the marital estate

but rather as a distribution of her separate property. The gross value of the parties’ ma

rital estate

should be reduced by the total value of this property.

E. T HE D EBT TO U NION P LANTERS B ANK

The final matter rela

ting to the division of

th e marital esta

te involves the allocation of the responsibility

for paying the $100,000 home equity loan with UnionPlanters Bank. The trial judge determinedthat this debt should be Ms. Kinard’s responsibility, ostensibly because shereceived the house that secured the debt. The evidence does not support this conclusion.

Marital debt, like marital proper ty, should be divided equitably in accordance with the factors in Tenn. Code. Ann. § 36-4-121(c) and in light of (1) which party incur red the debt, (2)

the purpose of the debt, (3) which party benefitted from incurring the debt, and (4)

which party is bett

er able to repay the debt. See Cutsinger v. Cutsinger , 917 S.W.2d at 243; Mahaffey v. Mahaffey , 775 S.W.2d at 623-24. Marital de

bts need not be divid

ed in precisely th

e same manner as th

e marital assets, although they frequently follow their related assets. See Mondelli v. H oward , 780 S.W.2d 769, 773 (Tenn. Ct. App. 1989); Mansfield v. Mansf ield , No. 01A01-9412-CH-0058, 1995 WL 643329, at *9 (Tenn. Ct. App. Nov. 3, 1995) (No Tenn. R. App. P. 11 application filed).

Most of the home equity l

oan was used for s

peculative inves

tments. Ms. Kinard testified that $45,000 was used to purcha se stock and that $30,000 was used to make some oil investments. She also testified that Mr. Kina r d took $4,000 of the proceeds for his personal use shortly after the separation. Ms. Kinardis fifty-five year s old. She is curren

tly unemployed, an

d her monthly expenses are approximate ly $5,500. Although q

ualified to

teach at the secondary level, she had, by the time of the trial, applied and been rejected for at least ten jobs. On the other hand, Mr. Kinard
earns more than $80,000 a year and, as the major stockholder of Drug Centers, h as a far better chanceat accumulating capital assets and generating the income required to repay this indeb

tedness. After considering thefactors applica ble to the apportionment of marital debt, we have determined that Mr. Kinard should be responsible for repaying this home equity loan.

F.

The trial judge’s distribution of the marital estate left Ms. Kinard with m arital pr operty valuedat $448,150 (52% of the net marital es

tate) and left Mr

. Kinard with

p roperty valued at $412,850 (48% of the net marital estate). As a result of the ad justments in

the preceding se

ctions,9 The total value of the marital estate was decreased by $146,500 wh en we reclassified the items of property prev

iouslyclassified as marital property. However, it was increased by $47,952 representing the increased value of the Drug Centers note. 

### -12- this apportionment changes. The value of the entire marital estate is decreased by $99,548 as a result of the adjustments for

the increased va

lue of the Drug Cen

te rs noteand reclassification of the separate property that had been classified erroneously as marital property. 9 In addition, M s . Kinard’s share of the marital estate has been increased by $47,952 representing the adjustment in the value of the Drug Centers note and by $100,000 representing the transfer of responsibility for paying the homeequity loan from Ms. Kinard to Mr. Kinard. Mr. Kinar d’s share of the e

state is correspondingly

decreased by $100,000 which represents the home equity loan that he is now responsible for repaying.

As a result of these

adjustments, the ne

t value of the parties’ esta te is approximatel

y $762,452. Ms. Kinard will receive $449,602 (59%), and Mr. Kinard will receive $312,850 (41%). Under this division, Ms. Kinard will receive well over half of the marital estate, including the marital homeand all household goods and furnishings, the $145,952 Drug Centers note, two automobiles, $80,000 of stocks and oil shares, and thirty percent of Mr. Kinard’s retirement fund.

Retirement

benefits, as marital property, ar e su bject to the same considerations as other property during the equitable division. The division need not be mathematically precise but must reflect essential fairness in light of the facts. See Cohen v. Cohen , 937 S.W.2d at 832; Kendrick v. Kendrick , 902 S.W.2d 918, 929 (Tenn. Ct. App. 199 4). Ms. Kinard has

failed to point to an

y facts that show the division of the ret irement ben efits, in light of the overall propert

y division, is inequitable. However, we do find that the judge should not have allowed Mr. Kinard to pay the benefitsin monthly installment paym ents of $50 0 over sixty months. T his distribution woul

d require Ms. Kinard to pay federal income tax on the retirement benefits, which would ordinarily not be taxed at retirement. We order that Ms. Kinard’s portion of the retirement account be transferred to her by a Qualified Domestic Relations Order.

VI. T HE S POUSAL S UPPORT A WARD

Ms. Kinard also takes issue with the trial judge’s decision t o award her $1,0

00 in rehabilitative spousal support for thirty-six months. She insists that she is entitled to permanent spousal support and that the amount of monthly spousal support ordered by the trial judge is far less than her monthly needs

. We have determined that the amount of Ms. Kinard’s spousal support should be increased and that the duration of this support should be lengthened.

A.

### -13- There are no hard and f

ast rules for spousal support decisions. See Crain v. Crain , 925 S.W.2d 232, 233 (Tenn. Ct . App. 1996); Stone v. Stone , 56 Tenn. App. 607, 615-16, 409 S.W.2d 388, 392-93 (1966). Tr

ial judges have

broad dis cre tion to determine w hether spousal sup

port is needed and, if so, its nature, amount, and duration. See Garfinkel v. Garfinkel , 945 S.W.2d 744, 748 (T enn. Ct. App. 1996); Jones v. Jones , 784 S.W.2d 349, 351 (T enn. Ct. App. 1989) . Appellate courts are generally disinclined to second-guess a trial judge’s spousal

support decision un

less it is notsupported by

the evidence or

is contrary t

o the public policie

s reflected in the

applicable statu

tes. See Brown v. Brown , 913 S.W.2d at 169; Ingram v. Ingram , 721 S.W.2d 262, 264 (Tenn. Ct. App. 1986).

Tenn. Code Ann. § 36 -5- 101 (d) (1) refl ect s a p refe renc e for tem por ary, rehabilitative spousal support, as opposed to long -term support.See Herrera v. Herre ra , 944 S.W.2d 379, 387 (T enn. Ct. App. 1996); Wilson v. Moor e , 929 S.W.2d 367, 375 (Tenn. Ct. App. 1996). The p urpose of rehabilitative support is to enable the d isad vantaged spouse to acquire additi

onal job skills, education, or training that will enable him or her to be more self-sufficient. See Smith v. Smith , 912 S.W.2d 155, 160 (Tenn. Ct. A pp. 1995); Cranford v. Cranford, 772 S.W.2d 48, 51 (Tenn. Ct. App. 1989). The purpose of long-term spousal support, on the other h and, is to provide support to a disadvantaged

spouse who is unable

to achieve some degree of self-sufficiency

. See Loria v. Loria , 952 S.W.2d 836, 838 (Tenn. Ct. App. 1997).

The statutory preference for rehabilitative support does not entirely displace other

forms of spousal support

when the facts

warrant long-term or more open-ended support. See Aaron v. Aaron , 909 S.W.2d 408, 410 (Tenn. 1995); Isbell v. Isbell , 816 S.W.2d 735, 739 (Tenn. 1991). Trial judges have the prerogative to determine the type of spousal support that best fits the circumstance s of the case, and thus trial judges may award several diff erent types of support

in the same case when

the facts warrant it. See Cheatham v. Cheatham , No. 01A01-9508-CH-00380, 1997 WL 731784, at *7 (Tenn. Ct. App. Nov. 25, 1997) (No Tenn. R. App. P. 11 application filed).

Even though fault is a relevant consideration when setting spousal support, see Tenn. Code Ann. § 36-5-101(d)(1)(K), spousal support decisions are not intended to

be punitive. See Duncan

v. Duncan , 686 S.W.2d 568, 571 (Tenn. 198 4); McClung v. McClung , 29 Tenn. App. 580, 584, 198 S.W.2d 820, 8 22 (1946 ). The purpose of spousal support is to

aid the disadvanta

ged spouse to become and remain self-sufficient and, when economic re habilitation is not f

easible, to mitiga

te the harsh economic

realities of

divorce. See Shackleford v. Shackleford

, 611 S.W.2d 598, 601 (Tenn. Ct. App. 1980). Two persons living separately incur more exp enses than two persons living together. Thus, in most divorce cases i t is unlikely that both parties will be ab

le to maintain their pre-divorcelifestyle once the proceedings are concluded. See Brown v. Brown , 913 S.W.2d at 169. While enabling the

economically disa

dvantaged to maint

ainthe pre-divorce lif

estyle is a laudab

le goal, we have realistically recognized that in most divorce cases, the courts must be satis fied with awarding “closing in money” – that is awarding the spouse sufficient funds to return as closely as is economically possible to the pre-divorce lifestyle. See Aaron v. Aaron , 909 S.W.2d at 411.

### -14- Spousal support decisions hinge on the unique facts of the case and req uire a caref

ul balancing of the factors in Tenn. Code Ann. § 36-5-101(d)( 1) (Supp. 1997). See Hawkins v. Hawkins , 883 S.W.2d 622, 625 (T enn. Ct. App. 1994); Loyd v. Loyd , 860 S.W.2d 409, 412 (Tenn. Ct. App. 1993). In virtually every case, the two most important factors are the demonstrated need of the disadvantaged spouse and the obligor spouse’s ability to pay

. See Varley v. Varley , 934 S.W.2d 659, 618 (Tenn. Ct. App. 1996); Crain v. Crain , 925 S.W.2d at 234.

B.

Ms. Kinard is presently fifty-five years old and in good health. She has a B.S. degree from Middle Tennessee State University and is certified to teach. However, she has been out of the workforcefor thirty years as a result of the parties’ d

ecision that she sh

ould remain at home

to raise their children. While M

s. Kinard is

capable of working, the realities of the labor market narrow her options. It is unlikely that sh e will be able to ma

tch Mr. Kinard’s e

arning capacity

or that she will be able to make up

the economic grou

nd she has lost over

the past thirty yea

rs.

On the other hand, Mr. Kinard, who is now sixty years old, is a licensed pharmacist and is the chief executive o ffice and a major stockholder in a corporation that owns a chain of nine drugstores. Despite

Ms. Kinard’s direct and indirect contributions to this business, Mr. Kinard has received the business as part of the division of the marital estate. His income exceeds $80,000 per year and he also receives a generous fringe benefit package that provides profit sharing and pays for his automobile, insu

rance, and othe

r daily needs.

Ms. Kinard has demonstrated a need for spousa l support, and Mr. Kinard is able to pay support. Ms. Kinardasserts that she needs at least $3,500 per month in order to maintain a lifestyle comparable

to her pre-divorce lifestyle. This record does not support a conclusion that Mr. Kinard
can pay that much support. However, in light of the long duration of the marriage, Ms Kin ard’s contributions to Mr. Kinard’s business, the disparity between the parties’ ability to earnincome and to accumulate assets, and the manne r in which the marital estate has been divided, we have determinedthat Mr. Kinard should be ordered to pay Ms. Kinard $2,000 pe r month in long-term spousal support until she is sixty-five years old. This award for sp ousal support will r

emain in the trial judge’s jurisdi ction , and the trial judge may alter either the amount or duration of the award upon a proper showing by either party. This increased spousal support award shall take effect sixty days after this opinion is filed. However, it shall be suspended if either party fi le s a timely application for permission to a ppeal. Should eithe

r party file an applicati

on for permission to

appeal, Mr. Kinardshall continue to pay Ms. Kinard $1,000 per month wh

ile the appeal is p

ending and this obligation shall continue for as long as the appeal is pending and shall not expire. If Mr. Kinard files an application for

permission to

appeal that is later denied, he shall pay Ms. Kinard the difference betw een the spousal support he actually paid while the application for permission to appea l wa s

### -15-

pendi ng and the spousal support he would have paid had no application for permission to app ea l been filed.

VII.

M S . K INARD ’ S R EQUESTS FOR L EGAL E XPENSES

As a final matter, Ms. Kinard asserts that thetrial judge should h ave required Mr

. Kinard to pay for her legal expenses at trial and that she is entitled to an additional award for the legal expenses incurred on this appeal. The trial judge gave no reason for its denial of her request. Based on the divisi on of th e marital property as modified by this opinion, we have determined that Ms. Kinard has not demonstrat

ed that she should r

eceive additiona

l funds to defray h

er legal expense

s.

In a divorce action, an award of attorney’s fees is treated as alimony. See Smith v. Smith, 912 S.W.2d at 161; Gilliam v. Gilliam , 776 S.W.2d 81, 96 (Tenn. Ct. App. 1988). The decision to award attorney’s fees lies within thesound discretion of the trial judge, s ee Aaron v. Aaron , 909 S.W.2d at 411; Brown v. Brown , 913 S.W.2d at 170, and we will not interfere with the trial judge’s decision unless the evidence preponderates against it. See Batson v. Batson , 769 S.W.2d at 862. A par ty is entitled to attorney’s fees when he or she lacks sufficient

funds to pay his or her legal expenses or would be required to deple

te other assets 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).

Under the facts of this case, we have concluded that Ms. Kinard should be responsible for her own legal expenses. She has received sufficient funds in the revised division of the marital estate to enable her to pay her lawyers. These funds could easily come from the increase in the amount of the Dru g Cen ters note. Even a fter she pays the

se expenses, she

still has sufficien

t assets that, if properly manage

d, will provide her

with additional inc

ome over the long te

rm.

VIII.

We affirm

th e final divorce decree as modified by this opinion and remand the case to the trial judge for whatever further proceedings may be required. We tax th e costs of this appe al in equal proportions to John Anderson Kinard and to Linda Kinard and her surety for which execution, if necessary, may issue.

______________________________ WILLIAM C. KOCH, JR., JUDGE CONCUR:

__________________________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

### -16-

__________________________________ BEN H. CANTRELL, JUDGE