# FILED
May 3, 1996 Cecil W. Crowson Ap pellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

HAYDEN D. WILSON, JR., ) ) Plaintiff/Appellee, ) ) Sequatchi e Circuit ) No. 6368 VS. ) ) Appeal N o. ) 01-A-01- 9506-CV- 00235 KATHRYN ANN MOORE, ) ) Defenda nt/Appella

nt. )

APPEAL FROM THE CIRCUIT COURT FOR SEQUATCHIE COUNTY

AT DUNLAP, TENNESSEE THE HONORABLE BUDDY D. PERRY, JUDGE

For the Plaintiff/Appellee : For th e Defe ndant/Appe llant : Stephen T. Greer Jacqueline E. Schulten Dunlap, Tennessee Chattanooga, Tennessee



## MODIFIED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE-2- 

## O P I N I O N

This a ppe al involves a ma rriage t hat faile d in less tha

n three y ears. T

he husband filed suit in the Circuit Court for Sequatchie County seeking a divo rce and the enforce ment o f the par ties’ prenuptial agreement. The w ife also requested
adivorce and c hallenged t he validity

of the prenuptial agr

eement. Follow ing a bench trial, t

he trial c ourt decla

red the pa

rties divor

ced pursua

nt to Tenn. C ode Ann. § 36-4-129(

b) (1991) and

upheld the pr

enuptial agreem

ent. Ac cordingly , the trial court awardedthe partie s their per sonal prope rty a nd directe d the husband

to
ass ume certain credit ca

rd indebted

ness and to provide t

he wife medical insurance for up to thirty-six months. Bo th p arties ta ke issue w ith various portions of the final divorce de cree on this appeal. We hav e determined that the trialcourt erred by faili ng to cons ider t he hu sban d’s incom e earned during the marriage as m arital pro per ty. Accordi ngly, we modify t he division of

mar ital prope rtyand the award of spousal su

pport.

I.
Hayden Wils on, Jr. a nd K ath ryn M. Wils on ( now Kath ryn Ann Moore ) first met when they were both em

ployedby the Sequatchi e County Board of Education. Mr. Wilson, who w as in his m id-fortie s at the tim

e, had a doctorate

degree in educational psycho logy an d guidance a nd was a sp ecial edu cationinstructor . Ms. Moore worked at the same school as an aide. She was eight years y ounger than Mr. Wilson a

nd was a r

ecent divor

cée wit h custody of two m inor children. They began dat ing sho rtly after Mr. Wilson ’s divorce in February 1990

.
Mr. Wilson proposed to Ms. Moore in March 1991. Tw o months later, Ms. Moore received her undergraduate degree and was emplo yed at a lo cal p har macy. Mr. Wil s on requeste d Ms. Moor e to sign a pr

enuptial agreem

ent becaus e he desired to preser

ve his sepa

rate asse ts for his c hildren. Ms. Moore wa s general ly ambiv alent

about signingthe agreement. On the only occasion s he questione d the need for the agreem

ent, Mr. Wilson i nform

ed her tha

t he wou ld not p ay her

to marry hi m. Thereafter, Mr. Wilson requested the lawyer who had represe nted Ms. Moore in her divorce from her first husband to pre pare th e agreement. T hey1 Mr. Wilson an d his first wife had t hree ch ildren. T heir olde st daugh

ter was a n adult when they

were div orced, a

nd Mr. Wilson

and his fi

rst wife agreed to a jo int custody arrangement

with reg ard totheir two minor sons. The boys lived alternate ly with their mother and father.
-3- signed the agreement o n July18, 1991 and were mar ried ten da

ys lat er on July 28, 1991. Ms. Moor

e and her t

wo childr en mo ved in with Mr. Wilson and his two minor children. 1

Ms. Moore suf

fered a wo rk-rela

ted injur y and st opped work

ing at the pharmacy shortly after th e wedding. The parties’ relations hip develope d serious pro bl ems later in the year, and by D ecem ber 1991, Ms. Moore

declare d that she wanted a divorce. Mr. W

ilson also c onsulted a l awye r about a divorce. An uneasy stalemate developed, and the par ties began living essen

tially separate lives in June 1992 whe n Ms. M oore enrol led at Cha ttanooga State Tec hnical Com munity College to s tud y radi olo gic al t ech nol ogy. She sp ent most of t he t ime during the week at school, and she studied most of the time when she was at home.

Th e pa rties sepa

rated in N ovembe

r 1993, and

Mr. W ilson filed

suit for divorce on November 8, 1993. Ms. Moore counterclaim ed for divorce. Following
atrial in May 1994, the trial court entered a final decre e declaring the parties divorced and finding that their prenuptial agreement was valid. The trial court also found that Mr. W

ilson’s c ontributions to his retir emen t accounts during the
marr iage were mar

ital property and awarded Ms. Moore one- half of the se funds. The court alsodirected

Mr. W ilson to be r

esponsible f

or $1,500 in

credit c ard debt and to provi de Ms. Moore with health insuranc e coverage for up tothirty -six months or until she

found em

ploym ent.

Mr. Wilson f

iled a post- trial m

otion taking i ssue with t

h e portion of t

he decision awardin g Ms. Moor

e one-hal f of the c ontributions to his retir emen t accounts made

during the m

arriage . The tr

ial court a

ltered it s original d ecision after determining that the prenuptial ag ree me nt prevente d Ms. Moor e from receivin g a share of Mr. Wilson’ s retire ment c ontributions. This appe al follow ed.

II. T HE V ALIDITY OF THE P RENUPTIAL A GREEMENT2 See, e.g., Lightman v. Magid, 54 Tenn. App. 701, 710, 394 S.W.2d 151, 156 (1965) (the

husbandandwife were seventy -one and fifty -eight y ears old respectively , and the husbandhad children from a pr

evious ma

rriag e); Baker v . Baker, 24 Tenn. App. 220, 226, 142 S.W.2d 737, 741 (1940) (the husband

and wife were sixty y

ears old, and

both had children from their previous marriages). -4- Ms. Moore disputes the validity of the prenuptial agr

eement on the gro und thatMr. W

ilson did not di sclosehis fi nancial hol dings with su fficient precision before she execut ed the agree ment. We disa gree. Mr. Wi lson’s e xplanation o f his financial holdings wa s sufficientto enable M s. Moore to m ake a know ledgeable decision w ith regar

d to execut

ing the agr

eement.

A.
Prenuptial agreem

ents are favored by

public polic y in T ennessee. Perkinson v. Perki nson, 802 S.W .2d 600, 60 1 (Tenn. 1990); Hoyt v. Hoyt, 213 Tenn. 117, 125, 3 72 S.W .2d 300, 30 3 (1963); Key v. Collins, 145 Tenn. 10 6, 109, 236 S.W. 3, 4 (1921) . They benefit th e parties by def ining their marital r

ights in property which tend to be amo ng the m ost frequent causes o f fam ily disc ord. Sanders v. Sanders

, 40 Tenn. App. 20, 30, 288 S.W. 2d 473, 477 (1955). They also enhance t

he opportuni ties for

middle -aged per sons to re-marry by prot ecting their separate assets for t he childre n of previo us marriages. Pajak v. Pajak, 385 S.E.2d 384, 388 (W. V a. 1989). 2

Tenn. Code Ann. § 36-3-501 ( 1991) requi res the c ourts t o give effe ct to prenuptial agre ement s as lon g as the y s ati sfy c ertain r equirem ents. T o be enforceable, the agreement must “ have been ente

red into by su ch s pou ses free ly, knowledge ablyand in good fa ith without

exertion of duress o r undueinfluence on either spouse.” This record contains no evidence o f duress, u ndue influe nce, or bad faith on Mr

. Wilson’s part. Thus, the principal focus o f this aspe ct of the appeal is on the re quirem ent that the

spouse ente

r into the pr

enupti al agree ment kno wled gea bly.

An engagem

ent to marry

establishes a confide ntial rel ationship between the parties. Baker v. Baker , 24 Tenn. App. 220, 223, 142 S.W. 2d 737, 745 (1940); see also 1 Homer

H. Clark, Jr., The Law of Domesti c Relati ons in the Unit ed States, § 1.9, at 44 (2d ed. 1987); 3 Alexander Lindley & Louis I. Parley, Lindley on3 Williams v. W illiams, 868 S.W.2d at 619; Hartz v. H artz, 234 A.2d 865, 870 (Md. 1966); Fick v. Fick, 851 P.2d 445 , 450 (Nev. 1993); Simeone v. Simeone, 581 A.2d 162, 167 (Pa. 1990).

4 This formulation of the stan dard is used by the twe nty-one states which ha

ve adopted either the Uniform Premarital Agreement Act, § 6( a)(2)(I) , 9B U.L.A. 369, 376 (1983) or the Uniform Marital Property Act, § 10(g)(2)(ii), 9A U.L .A. 103, 122 (1983).

5 Herget v. Herge t, 550 A.2d 382, 385 (Md. App. 1988), rev'd on other grounds , 573 A.2d 798 (Md. 1990); Panossian v. Panossian, 569 N.Y.S.2d 182, 184 (App. Div. 1991); In re Esta te of Bee sley (Be esley v . Harr is), 883 P.2d 1343, 1348 (Utah 1994).
-5- Separation Agreem ents and Ant enuptual Cont

racts, § 90.03 (MB) (1995). Acco rdi ngl y, engaged persons who plan to execute a prenupti al agree ment m ust make “a f ull disclosur

e of the nature, extent and value” of their property in order to enable their prospec tive spouse t o m ake a kn owledgea

ble decisi on about entering i nto the agreement. Williams v. W illiams, 868 S.W .2d 616, 619 (Tenn

. Ct. App. 1992). The required disclosure

may be accom

plished thro ugh a form

al, explicit process, such as ex changing lists of holdings, or it can be made more informallyover the co urse of the relations hip. Kahn v. K ahn, 756 S.W .2d 685, 695 (Tenn. 1988).

The adequacy

of a part icular dis closure de

pends upon the context in which itwas made. Theref

ore, the lengths to which a per son must go in revea

ling his or her financia l interest s c an onlybe determined by the c ircumstances of each particular case. R ather tha

n form ulating precise tests, m

anycourts have required thatthe disclosure be “full and fair” 3 or “f air and r eas onable” 4 or some other similar form ulation. A

ll thesestandards, in essence , requir e that the disclosure

be essential ly fa

ir under a ll the cir cumst ances.
While some state cour

ts have re solved the i ssue diffe rentl y, m ost courts have not construe d the full a nd fair dis closure r

equir emen t to m andate detailed disclosures such as financial statements, appraisals, balance sheets, or the like. In
re Estate of Lopata, 641 P.2d 952, 955 (Colo. 1982); In re Thies (Thies v. Lowe), 903 P.2d 186, 189 (Mont. 1995); In re Est at e of Geye r , 533 A.2d 423, 427 (Pa. 1987); Hartz v. Hartz, 234 A.2d 865, 871 n. 4 (Md. 1967); In re Est ate of Hill , 335 N.W .2d 750, 753 (N eb. 1983); see also, 2 John Tingley & Nicholas P. Svalina, Marital Property Law, § 28.05 (r ev. 2d ed. 1995). T

hus, inthe absence o f fraud or overreaching, the inadvertent failure to disclose an asset 5 or theunintentional6 Farver v. Hilty, No. S-91-3, 1991 WL 254224, at *3 (Ohio Ct. App. Oct. 11, 1991).

7 Mr. Wilson testified later that the value of the zero coupon bonds at maturity wa s $31,000 but that their market value in 1991 prior to the marriage w as $18,232. -6- undervaluation of an asset 6 will not invalidate a prenuptial agreement as long as the disclosure that was made provides an essential ly ac curate un derstandin g of the party’s financia

l holdings. The disclosure will be de emed

adequate if it imp arts
an accurat

e understa

nding of the nature an d extent of a person’ s property

interests

. Nanini v. Nanini, 802 P.2d 438, 441 (Ariz. Ct. App. 1990).

B.

Mr. Wilson’s financi al holdin gs imm ediately prior to his mar

riage to M s. Moore consisted of

(1) a 3 60-acre farm par

tially owned with his parents, (2) a furnished farm

house, (3 ) farm

equipm ent and vehicl es, (4) approximately seventy hea d of livestock, (5) a boat, and (6) twelve other accounts or asset s wort h be tween $130,000 and

$160,000. While h e did not pro vide Ms. M oor e with a detailed list of the se assets a nd their value prior the execution of the prenuptial agreem ent, he a ttemp ted as best

he could to f

amili arize he

r with his holdings.

Ms. Moore wa s fam

iliar wi th Mr. Wilson’s farm and was even privy to his negotiation s in 1991 to sell a portionof the fa

rm toCharles G

reen. S he was al so familiar with the f

arm house and its contents be cause she had visited there often whilethe parties were dating. Sometime after t he engagem ent, Mr. Wilson removed each of his financial files fro m afiling cabinet in his bedroom, described
e ach one of h is accounts to Ms. Moor e, and ev en gave her

an estim ate of the current value of th e assets. Mr. W ilson unintent io nally o verlooked a $5,000 certifi cate of deposit a

nd 250 share s of stock in First Pik eville Ba nk because

he did not have folders for these assets. He also overvalued his Sherson Lehman account by

approxim

ately $13,000 bec ause he m

istook the m

aturity value of th e bonds in the account for their current market value. 7

Ms. Moore seemed generally disinterested in the information ab o ut Mr. Wilso n’s holdings. S he asked no q uestions while Mr. Wilson w as descri bing his property and nev er a sk ed f or a dd it io nal in for ma tion ab out these a ccounts. She-7-

reviewedand signed t

he prenupt

ial ag reem

ent ten day s before t

he wedding without comm ent or question. The agreement, which was drafted by Ms. Mo ore’s former lawyer at Mr. Wilson’s request, specifically recited that both parties were “fully acquainted with the business and resources of the other,” that both parties “unde rstood the assets and poss ession s of the other,” that both parties had “answered

all qu est io ns th e ot her has ask ed a bo ut in come and as sets,” and that both part ies “had access t o any and all fin ancial inf ormation of th e other part y.”

Under all the circumstances of this case, Mr. Wi lson ma de a full a

nd fair disclosure of his fin ancial ho ldings t o Ms. Moore. H is in advertent omissi on of two ass ets whose valu e com prised ten to fifteen percent

of the tota

l value of h

is holdings was not m

aterial or signific ant enough toprevent th e enforc emen t of the prenuptial agreem

ent. This omis sion w a s also parti ally off -set b y Mr. Wilso n’s mista ken overva

luation of one of his other

assets. Accordi ngly, we concu r with the trial cour

t’ s conclus ion that Mr. Wilson’s disclosure of his holdings was sufficie ntto enable Ms . Moore to execute the prenupt

ial agreement knowledge ably a s require d by T enn. Code Ann. § 36- 3-501.

III. T HE D IVISION OFTHE M ARITAL P ROPERTY

Ms. Moore a lso takes is sue with th e trial c ourt’s d ecision to c lassify the increase in value of several of Mr. Wilson’ s accounts during the m arriage as his separate property . Since

Tenn. Code Ann. § 36-4-121(a) (1991) vest s trial co urts withwide disc retion wi th regard to classif ying an d di viding p roperty, Fisher v. Fisher, 648 S.W .2d 244, 24 6 (Tenn. 1983), these decisions are entitled to great
w eight on ap peal. Edwards v. Edwards, 501 S.W .2d 283, 28 8 (Tenn. Ct. App. 1973). They

will be pr

esume d to be corr

ect unless the eviden ce preponde rate s otherwise, Hardin v. Hardin, 689 S.W .2d 15 2, 154 (Tenn . Ct. A pp. 1983), or unless they are based on an error of law. Mahaffey v. Mahaffey, 775 S.W .2d 618, 622 (Tenn. Ct . App. 1989).

A.

M R . W ILSON ’ S R ETIREMENT A CCOUNTS8 The $2,646 difference between the total incre ase in the value of these accounts and Mr.

Wilson’s contribution s repre sents the investmen

t income o f these tw o accou nts.

-8- Mr. Wilson

participa ted in the T ennessee Consolidate d Retirem ent System and in the state-sponsored 403(b) deferr e d comp ensation pr ogram during the marriage. He arranged for his retir emen t contrib utions and his monthl y $350 contributio ns to his 403(b) plan to be deducte d autom atically from his paych eck. From Septem ber 1991 thr

ough March

1994, Mr. W

ilson contribute d $4,099 to hi s retirem ent plan and ap proxim ately

$11,850 in hi s 403(b) pla n. As a r esult of the earnings on these inv estments, the combi ned value of

both accoun

ts increa sed by approximately

$18,594.97 8 during the marriage.

The trial cour

t first determ

ined that the increase in the value of Mr. Wilso n’s retirement accounts du ring the m

arriage was marital pr

operty and awarded Ms. Moore one-half of the total increase. The trial court later reversed itself. We hav e determ

ined that th e trial c ourt’s f irst decision was correct . These
con tri but ion s wer e mari tal pro per ty.

The prenuptial agreement contains two pro vis ions relev ant to the classific ation of Mr . Wils on’s retirem ent contri butions. O ne on hand, it states: The parties he

reto s hal l retain t

he title to and shall manage and contr

ol the esta

te whi ch the y now own, or which t

hey m ay inh erit

or rece ive by g ift, whether it be realty, personalty

or mixed, together

with all increase

or addition

the reto , as though such party had remained single and unmar ried, and entirely free and unmo les ted by t he other par ty, a s well as the right to encu mber, sel l, dispose of or give a way, by wi ll or other wise, a ll of said e state so se parately owned and possessed. Should

the marriage between the partie s be terminated

by annulm ent or divor

ce . . . no claim

for property dis tri but ion ali mony, [or] support

. . . shall be made by eit her of the

parties he

reto agai nst

t he other party or the est a te or i nheritance or gifts of the other par ty. On the othe

r hand, it also state s: Both p ar ties acknow ledge that they m ay ac cumul ate certain other prop erty during their marriage by vir tue of their joint ef forts. S uch proper

ty ac quired j ointly s hall-9- not be de emed part of the se parate pr operty of the parties di scussed her

ein. Thus, the parties agreed that increas es i n the value of their s eparate

property would be consider

ed separa te proper ty but th at they

could also a

ccum ulate marital property during the marria ge. Prenuptial agreem

ents should be

construe d with r eference to the statutes governi ng the distrib ution of marital pr operty . They

should also be

construe d using the rules of

construc tion app licable to contracts in general

. In re Est ate of Wiseman, 889 S.W.2d 215, 217 (T enn. Ct. App. 1994); Gilley v. Gilley, 778 S.W. 2d 862, 86 3 ( Tenn. C t. App. 1989); Sanders v. Sanders, 40 Tenn. App. 20, 30, 288 S.W .2d 473, 477 (1955). Thus, the courts’ role is to a scertain and to give effect to the con tracting p arties’ inten t. Bob Pear sall Motors, Inc. v. Regal Chrysl er-Plym

outh, Inc., 521 S .W. 2d 578, 580 ( Tenn. 197 5); Winfree v. Educators Credit Un ion, 900 S.W.2d 285, 289 (Tenn. Ct. A pp. 1995).

Contract ing parties’ intent is embodied in their writtenagreements. Gredig
v. Tennessee Fa rmers Mut. Ins . Co., 891 S.W .2d 909, 91 2 (Tenn. Ct. App. 1994). Acco rdi ngl y, the courts must e xamin e the text of the contra

ct in the c ontext

of the entire agreement. Cocke County Bd. of Highway Comm’rs v. Newport U tils. Bd., 690 S.W. 2d 231, 237 ( Tenn. 198 5); Cookevill e Gynecology & Obstetrics, P.C. v. Southeastern

Data Sys., In c., 884 S. W.2d 458, 462 (Tenn. Ct. App. 1994). C ontr actual terms should be given t heir ordin ary meaning, Breeding v. Shackelfor

d, 888 S.W .2d 7 70, 775 (T enn. Ct. App. 1994) ; Jaffe v. Bolton, 817 S.W

. 2d 19, 25 (T enn. Ct. App. 1991) , and should be constru ed harm

oniously to give eff ect t o all prov isions a nd to avo id creatin g internal conflicts

. Rainey v. Stansell, 836 S .W. 2d 117, 119 (Tenn . Ct. A pp. 1992); Park Place Ctr . Enters., Inc. v. Park Place Mal l Assocs., L.P., 836 S.W .2d 113, 11 6 (Tenn. Ct. App. 1992). Ambiguities in contractlangu age should be construed against the

party responsible

for draf ting the contra ct. Hanover Ins. Co. v. Haney, 221 Tenn. 148, 153-54, 425 S.W .2d 590, 59 2-93 (1968) ; G rand Vall ey Lakes Property Owners Ass’n v. Cary, 897 S.W.2d 262, 267 (Tenn. Ct. A pp. 1994).-10- Mr. Wilson a sserts tha

t the contr

ibutions to his retirem

ent accou nts during the marri age sho uld not be s ubje ct t o di vis ion as mar ita l pr ope rty b e cause they
were “inc reases” or “a

dditions” to a

ccounts he o wned prior

to the marriage. Ms. Moore, on the other hand, contends that these contributions were marital property because they c ame from

salary Mr. W ilson earn ed during the

mar riage. Ms. Moore has t

he better argum ent.

The provision on which Mr. Wilson relies was intended to counterac t Tenn. Code Ann. § 36-4-121(b)(1)(B) (1991) whichstates thatincrease s in the valu e of separate property during the m

arriage should betreated as marital property if each party contribute d substantia

lly tothe preserva

tion and appr

eciation o f the sepa

rate property. Its eviden

t purpose w as to m ake sure t hat all app reciatio n in the value of the property that

each par ty own ed prior tothe m arriage would rem

ain separ ate property notwithstanding any “contributions” the other party m ight make. We do not cons true the pr

ovision to ena

ble one spous e to place

property that would otherwis e be ma

rital prop erty beyond t

he reach of theothe r spouse sim ply by depositing it into an account that existed prior to the marriage.

Mr. Wil so n’s con tri bu ti on s t o h is ret ire ment acc ou nt s ca me directly from the sal ary he earn ed d uri ng t he mar riag e. Hi s sa lary was not separate property undereither the

pr enuptial a greem

ent or stat

e law. It was no t covered by the agreem ent because it was not pa

rt of Mr. Wilson’ s prem arital e state and b ecause he did not re ceive it by inh eritance or g ift. L i kewise, it did not fi t within the definition of separat e propert y in T enn. Code

Ann. § 36- 4-121(b)( 2) (1991) but rather was marital propert y for the purpose s of Tenn. Code Ann. § 36-4- 121(b)(1 )(A) (1991). Since Mr. Wilson’s salar y earned during the mar

riage was maritalprop erty, Mr. Wi lson coul d not place it beyo nd Ms . Moor e’s reach simply by dire cting that i t be deposit ed into his se

parate a ccounts.

We have dete

rmine d that the $1 5,949 in contributions that Mr . Wils on mad e to his retir

emen t accoun ts dur ing the marriage were m arital pr operty subject to division. Since the abridged record does not enable us to determ

ine how m

uch of the investment in come should p roperly be attri buted to these cont ributio ns, we have determ

ined that th e $2,646 ea

rned duringthe m arriage

should be treated as-11-

Mr. Wilson’ s separat

e propert y in a ccordanc e with the prenuptial

agreem ent. Acco rdi ngl y, we have

determ ined that Mr. Wi lson should have b een awa rded his retirem ent accounts but also that he should have b een order ed to pay Ms. Moore $7, 974 .50 in f

ull and compl ete s ett lemen t fo r her int eres t in thi s pr ope rty.

B. M R . W ILSON ’ S O THER A CCOUNTS

Ms. Moore als o insists that she was entitled to a portion of three other financial accounts. She clai ms tha t th e funds in these accounts are marital property because Mr. Wi lson opened t he account s during the mar riage. We do not agree that the funds in these accounts are m arital p roperty solely because t

he accounts were opened during the marriage.

Mr. Wilson t

estified w it hout con tradiction that the funds for the three accounts in question c ame from his farm ing activit

ies, eit her from the install ment sale of a porti on of the fa rm pr operty , from

the proce eds of the s ale of ca ttle, or from renting portions of the farm land to others. There is no dispute that Mr. Wilso n owned the

farm prior to the

mar riage, a nd thus that t

he funds in

thes e accounts were proceeds from this separate asset. B oth the pre nuptial agr eement and the statute

governing th e distribut

ion of mar ital prope rty pr ovide that prope

rty acquir ed in exchange

for separate prope

rty a nd incom e from separate prope rt y rema ins separate

pro per ty. Tenn. Code Ann. § 36-4-121(b)(2)(B), -121(b)(2)(C ) (1991). Since the record contains no evidence that Mr. Wilson intended to treat these assets as mari tal proper ty, w e concur w ith the tria l court’s conclusion that the se ac cou nts sho uld be cl ass ifi ed a s Mr . Wils on’s sep arat e pro per ty.

IV. T HE S POUSAL S UPPORT A WARD

Both parties t ake issue

with the trial court’s decision to award Ms. Moore rehabilit ative alimony by directingMr. W

ilson to provide hermedical insurance for three years or until she remarried or became em ployed. Ms. Moore asserts that she was entitled to mor

e spousal sup port; whil e Mr. W ilson predicably insists that9 Our courts have traditionally invalidated pr ovisions in prenuptial agreements that affect a spouse’s right

to spousal support. Kahn v. Kahn, 756 S.W.2d at 694; Duncan v. Duncan, 652 S.W.2d 913, 915 (Tenn. Ct. App. 1983); Crouch v. Crouch, 53 Tenn. App. 594, 604, 385 S.W.2d 288, 293 (1964). Most other jurisdictions now honor agreements affecting spousal support. See, e.g., Edwardson v. Edwardson, 798 S.W.2d 941, 943-46 (Ky . 1990); Frey v. Frey, 471 A.2d 705, 710 (Md. 1984 ); see also

1 John Tingley & Nic

holas B. Svalina, Marital Pro perty Law §§ 25:01 - 25:05 (rev. 2d ed. 1995). In 1989, a pa

nel of the Western Section of th

is Court declined to

follow the traditional rule andpredicted that the Tennessee Supreme Court would uphold spou sal support r estricti ons in otherwis e valid prenuptial agreements when square ly presented with the issue. Gross v. Gross, C.A. No. 257, sl

ip op. at 6 (Tenn. Ct. App. May 17, 1989) (no Tenn. R. App. P. 11 applica tion filed). Recently, another Western Section pane l declined to follow the Grossdecision and declinedto give effect to a p renuptia l agreement’s spousal support restriction. Cary v. Cary, App. No. 02-A -01-9401-C V-0003, slip op. at 9 (Tenn. Ct. App. Jan. 26, 1995), perm. app. granted (Tenn. May 1, 1995) . The Tennessee Supreme Court’s decision to review Cary v. Car

y provides strong support for the Grosscourt’s prediction of the demise of the traditional rule. It is not necessary

for us to addre ss the question of the enforceability of the prenuptial agreement’s spousal support restriction beca use Mr. Wilson has explicitly waived h is reliance on this provision. -12- Ms. Moo re was entit

led to no suppo rt at all. We hav e determ ined that M s. Moore’ s spousal support should be reduced.

The trial court ignor

ed the provi sion in the pr enuptial agreem

ent inwhich both parties waived their right to request spousal support if they wer e divor ced. Rather than re l ying on t

he prenupti al agree ment, 9 Mr. W ilson asser

ts that Ms. Moore is not entitl ed to spousal support unde

r the fac ts of this c ase u sing the criteri ain Tenn. Code Ann. § 36-5-101(d )(1) (Supp. 1995). Fo r her par t, Ms. Moore asserts t

hat sheshould have received spousal support m ore com mensu rate with the temporary

support she was receiving prior to the divorce.

Trial courts exe

rcise bro ad d iscre tion in determining whether to award spousal support as well as the amount and duration of supportif it is war ranted. Hawkins v. Hawkins, 883 S.W .2d 622, 62 5 (Tenn. Ct. App. 1994); Loyd v. L oyd, 860 S.W. 2d 409, 412 (Tenn

. Ct. App. 1993); Luna v. L una, 718 S.W .2d 673, 67 5 (Tenn. Ct. App. 1986). T hese deci sions are g uided by the factors in Tenn. Code Ann. § 36-5-101(d)(1) and are e ntitle d to great wei ght on ap peal. Batson v. Batson, 769 S.W .2d 849, 85 9 (Tenn. Ct. App. 1988). Accordi ngly, the appell ate courts are disinc lined to sec ond-guess th ese decis ions unless th ey ar e not supported by the evidence or are contrary to the public policies reflected i n the statutes governin g spous al suppo rt.10 During the marriage, Mr. Wilson earned $75,898, while Ms. Moore earned $1,587.
-13- The current statutes gov erning spous al support r eflect a pref

erence f or temporary

rehabilit ative suppor

t as opp osed to l ong-term support. T enn. Code Ann. § 36-5-101(d)(1) (eco no mica lly disa dvantaged s pouses should b e rehabilitated whenever

possible). The fac ts of thi s case s uppo rt the trial court ’s decision to provide Ms. Moore with some rehabilitative support, but they also milit ate again st the lengt

h of support awarde d by the trial cour t.

This mar riage wa s of rela

tively short dura

tion. Ms. Moore pre cipitated the divorce. She c ontribute d comparatively little to the parties’ finances 10 and apparently made

little othe

r non-fina

ncial cont ributions to t

he ma rriage. During the marri age , Mr. Wils on p aid for ma ny o f Ms. Moore’s non-mar

ital expenses such as anote Ms. M oore exec uted befor e the marriage

and expense s relatingto
a h ome that Ms. Moore owned with her fir st husband. He also pai d for Ms

. Moore ’s education expenses a t Chattano ogaState Technical Comm unity C ollege and for aportion of t

he expense s Ms. Moore inc urred to su pport her c hildren by her first marriage

.
We have determined

that requiring Mr. Wilson to provide Ms . Moore w ith medicalinsurance w as a prope r form of rehabi litative su

pport. In light of Ms. Moore ’s contributi ons to themar riage, t he financia

l benefits she received during the marriage, the am

ount of her

separate property , and the f

unds she rec eived in the division o f

the m arital pr

operty , we ha

ve determ ined that Mr. Wi lson should be required to provide Ms. Moore with medical insurance for two years fr

om the date of the entry to the final decree o r until she r emar ries or be come s empl oyed.

V.

We affirm

the portion s of the j udgmen tdeclaring the parties divorced a nd upholding the validit

y of th eir prenuptial

agreem ent. In a ccordanc e with this opinion, we remand the case with directions to enteran order directing Mr. Wilson to pay Ms . Moore $ 7,974.50 f or her inte

rest in the marital e state and t o reduce th e duration of Mr. Wi lson ’s spo usal supp ort o blig atio n from th ree to two years . We-14-

also tax the cos ts of

this appea

l in equal pr

oportions to H ayden

D. W ilson, Jr. and to Kathryn Ann Moo re and her surety, for which execution, if necessary, m ay issue.

_________________ ____ __________

__ _ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

_________________

_________________ HENRY F. T ODD, P.J., M.S.

_________________

_________________ SAMUEL L. LEWIS, JUDGE