IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

JERRY LYNN SHORTER, ) C/A NO. 03A01-9802-DR-00054 ) Appellee, ) MORRIS OWN DOMESTIC REL ATIONS ) v. ) HON. JOYCE M. WARD, ) JUDGE MARGARET MAE SHORTER, ) ) AFFIRMED AS Appellan t. ) MODIFIED

JERR Y LY NN S HOR TER , pro se.. DENISE TERR Y STAPLETO N, TERRY, TERR Y & STAPL ETON, Morristown, for Appellan t.

O P I N I O N Franks, J.
In this divorc e action the T rial Court de creed the p arties’ separate marital propert

y, divided the mari

tal estat e, and granted t

he parties a di

vorce pursuant to T.C .A. §36 -4-129 (b).

The wife has appealed and raises these issues: 1. The Court erred in not a warding alimony. 2. The Court erred in not e quitably divi

ding the marital

estate; and 3. The Court erred in not making a n equitable di stribution of the husband ’s military retirem ent. 

# F I LED
N ovem ber 23, 1998 Ceci l Crow

son, J r
. Appel l a t e Court C l e r k2 The parties were marri

ed in 1980 while the husband was i n the United States Air Force,

and separated in Sept

ember 1993 in Frankfurt,Germany, where the husband was stationed. No children were born of t his marriage, but

the wife had a son by a pre vious m arriage
.

The parties tr

aveled extensive

ly during the marriage, due to the husband’s career. In 1991, while the par ties were in Florida, they s eparated and the wife filed for

a divorce, but t

he parties re

conciled and moved to Germany to furt her the husband’s caree

r. The husband retur

ned to the United Sta

tes in 1995, whil

e the wife remained in Germany.

The wife has a high school education, and when the parties were first married the wife worked i n a clothing fact

ory and at a convenience store. While the parties were i

n Germany, the wife became employed as a civi lian with the Depart

ment of Defense, where she works i n the produce department of the commissary. She earns $10.29 per hou r at this job and rec eives a h ousing allowa nce fro m the g overnm ent. The husband retired f

rom the military i

n June of 1996, afte

r a 20 year career i

n the military, and receives a ret irement benefit

of $1,138.00 per month for the remainder of his life. He now works for the Department of Defense i n California,where according to the evidence hi s take home pay is $1,187. 00 every two weeks, based on $23.25 per hour. The Trial Court ref used to award alimony on the bas is that t he parties have been living apar

t and both were self

-supporting. The wife insists that rehabilit ative ali mony should have been awarded, and we agree. While Trial Co urts have broad discretion a s to whether to aw ard alimon y, Lloyd v. Lloyd , 860 S.W .2d 409, 41 2 (Tenn. A pp. 1993 ), where a s pouse is
econom ically disadv antaged, reh abilitative alim ony is app ropriate, if rehab ilitation is feasible. T.C.A. §36-5-101.3 The wife is economicall y disadvantaged compared to he r husband. The parties were married fo r sixteen years, and during m ost of the marriage the w ife followed the husb and around the w orld in furtherance of the hus band’s military career. She fol

lowed him to Germany, where she stil l remains, becaus e she has a job there, but she has not been able t o acquire any specia

lized trai ning in part,due to her frequent moves. Current ly she works as a cler

k for the produce depar tment of the commissary in Frankfurt, Germany, earning $10.29 a n hour. She lives i

n government housing which has government fur niture. She does

not have any family in Germany and wishes to retur

n to the United Stat

es, but she opined that she did not believe she could find a compa rable job in th e United S tates. We b elieve rehab ilitative alimon y is appropriate t

o enable her to le arn a skill which would materially ai d her in findi

ng employment in the United Stat es to support her

needs. Accordingly,

upon remand, an order will be ent

ered awarding the wife r ehabilita tive alimony for

a period of 36 months at $500.00 per month.

Next, the wife cont

ends that the di

vision of the mari

tal estat e was inequitable . The Trial Court was r equired to make an equit able division of the marital proper ty, whic h is not n ecessa rily an eq ual divis ion. See Watters v. Watters , 959 S.W.2d 585, 591 (Tenn. A pp. 1997 ). The Trial C ourt stated tha t it intended to essential ly make an equal divisi on of the marital

property, and concl

uded that such division would be equi

table. Both par

ties offer ed opinions of the

value of the sever

al items of marital

property which diff

ered in amount. The Trial Court, with the exception of automobil es, did not pl ace a dollar val ue on the respecti

ve items of marital propert

y awarded to each party. Using the husband’s val ue of assets,the husband was awarded property in t he amount of $92,511.00. Usi ng the wife’s value of the assets , the husband was awarded proper ty valued at $95, 136.00. Using the4

wife’s valuati

on but adding in the wif e’s retir ement account, which was not l isted but properly a part

of the marital

estate, t he wife was awarded property i n the amount of $85,188.00, and usi

ng the husband’s evalua tion, incl uding the reti

rement account, she was awarded $94,988.00. We conclude that the marital s ettlement made by the Tri al Judge was eq uitable, a nd we decline to mak e any a djustm ents in th ese aw ards.

Finally, t he wife argues that

she did not recei

ve an equitable di stribution of the husband’s mil

itary ret irement. Vested r

etirement plans

constitut

e marital proper ty, subje ct to equ itable dis tribution
. Cohen v. Cohen , 937 S.W.2d 823, 825 (Tenn. 1996). Only rights which accrue duri ng the marriage will

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

ued “as of a date as nea r as possible

to the final

divorce hearing date”. Kendrick

at 927, T.C.A. §36-4- 121(b)(1)(A). The Trial Court, in awardi ng the wife 25% of the pension benefi ts, found that

the parties

had lived toget

her as man and wife for approximatel

y ten of the twenty yea

rs the husband was in t

he military,and awarded the w ife 50% of the ben efits accruing during that time p eriod. The wife argues pension rights accrued duri ng the sixteen year

s they were married, and that those pension rights shou ld be considered m arital property. We agree with the wife that all pe nsion rig hts accr uing du ring a m arriage are clas sified as marita l prope rty. See Kendrick , 902 S.W .2d at 926. H oweve r, after the ma rital property c lassification is determined, the r

emaining issue is

what is an equitabl

e division of t

hat portion of

the marital propert

y. We cannot say the Trial Judge abused her discr etion as a matter

of equity, in not

awarding one-half of

the pension which accrued during the marriage , since arguably the w ife was making no contribution to the m arriage during the years they were living apa

rt. Accordingl

y, we affirm the Tri al Judge on this i ssue. We affirm the judgment of the Tr ial Court, as

modified, and remand with one-half of t

he cost assessed t

o each party.5 __________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Don T. McM urray, J.

___________________________ Charles D. Susano, Jr., J.