IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

JERRY LYNN SHORTER, ) C/A NO. 03A01-9802-DR-00054

)

Appellee, ) MORRISOWN DOMESTIC RELATIONS

)

v. ) HON. JOYCE M. WARD,

) JUDGE

MARGARET MAE SHORTER, )

) AFFIRMED AS 

Appellant. ) MODIFIED

JERRY LYNN SHORTER, pro se..

DENISE TERRY STAPLETON, TERRY, TERRY & STAPLETON, Morristown, for

Appellant.

O P I N I O N

Franks, J.

In this divorc e action the Trial Court de creed the parties’ separate

marital property, divided the marital estate, and granted the parties a divorce pursuant

to T.C.A. §36-4-129(b). 

The wife has appealed and raises these issues:

1. The Court erred in not awarding alimony.

2. The Court erred in not equitably dividing the marital estate; and

3. The Court erred in not making an equitable distribution of the

husband’s military retirement.

F I LED

N ovem ber 23,

1998

Ceci l Crow son,

J r .

Appel l a t e Court

C l e r k
2

The parties were married in 1980 while the husband was in the United

States Air Force, and separated in September 1993 in Frankfurt, Germany, where the

husband was stationed. No children were born of this marriage, but the wife had a son

by a previous marriage. 

The parties traveled extensively during the marriage, due to the

husband’s career. In 1991, while the parties were in Florida, they separated and the

wife filed for a divorce, but the parties reconciled and moved to Germany to further

the husband’s career. The husband returned to the United States in 1995, while the

wife remained in Germany.

The wife has a high school education, and when the parties were first

married the wife worked in a clothing factory and at a convenience store. While the

parties were in Germany, the wife became employed as a civilian with the Department

of Defense, where she works in the produce department of the commissary. She earns

$10.29 per hour at this job and rec eives a housing allowance from the government. 

The husband retired from the military in June of 1996, after a 20 year career in the

military, and receives a retirement benefit of $1,138.00 per month for the remainder of

his life. He now works for the Department of Defense in California, where according

to the evidence his take home pay is $1,187.00 every two weeks, based on $23.25 per

hour. 

The Trial Court refused to award alimony on the basis that the parties

have been living apart and both were self-supporting. The wife insists that

rehabilitative alimony should have been awarded, and we agree.

While Trial Courts have broad discretion a s to whether to award

alimony, Lloyd v. Lloyd, 860 S.W.2d 409, 412 (Tenn. App. 1993), where a spouse is

economically disadvantaged, rehabilitative alimony is appropriate, if rehabilitation is

feasible. T.C.A. §36-5-101.
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The wife is economically disadvantaged compared to her husband. The

parties were married for sixteen years, and during most of the marriage the wife

followed the husband around the world in furtherance of the husband’s military

career. She followed him to Germany, where she still remains, because she has a job

there, but she has not been able to acquire any specialized training in part, due to her

frequent moves. Currently she works as a clerk for the produce department of the

commissary in Frankfurt, Germany, earning $10.29 an hour. She lives in government

housing which has government furniture. She does not have any family in Germany

and wishes to return to the United States, but she opined that she did not believe she

could find a compa rable job in the United States. We believe rehabilitative alimony is

appropriate to enable her to learn a skill which would materially aid her in finding

employment in the United States to support her needs. Accordingly, upon remand, an

order will be entered awarding the wife rehabilitative alimony for a period of 36

months at $500.00 per month.

Next, the wife contends that the division of the marital estate was

inequitable. The Trial Court was required to make an equitable division of the marital

property, which is not necessarily an equal division. See Watters v. Watters, 959

S.W.2d 585, 591 (Tenn. App. 1997). The Trial Court stated tha t it intended to

essentially make an equal division of the marital property, and concluded that such

division would be equitable. Both parties offered opinions of the value of the several

items of marital property which differed in amount. The Trial Court, with the

exception of automobiles, did not place a dollar value on the respective items of

marital property awarded to each party. Using the husband’s value of assets, the

husband was awarded property in the amount of $92,511.00. Using the wife’s value

of the assets, the husband was awarded property valued at $95,136.00. Using the
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wife’s valuation but adding in the wife’s retirement account, which was not listed but

properly a part of the marital estate, the wife was awarded property in the amount of

$85,188.00, and using the husband’s evaluation, including the retirement account, she

was awarded $94,988.00. We conclude that the marital settlement made by the Trial

Judge was equitable, and we decline to make any adjustments in these awards. 

Finally, the wife argues that she did not receive an equitable distribution

of the husband’s military retirement. Vested retirement plans constitute marital

property, subject to equitable distribution. Cohen v. Cohen, 937 S.W.2d 823, 825

(Tenn. 1996). Only rights which accrue during the marriage will be considered

marital property. Kendrick, 902 S.W.2d 926, T.C.A. §36-4-121(b)(1)(B). Pension

rights must be valued “as of a date as near as possible to the final divorce hearing

date”. Kendrick at 927, T.C.A. §36-4-121(b)(1)(A). The Trial Court, in awarding the

wife 25% of the pension benefits, found that the parties had lived together as man and

wife for approximately ten of the twenty years the husband was in the military, and

awarded the wife 50% of the benefits accruing during that time period. The wife

argues pension rights accrued during the sixteen years they were married, and that

those pension rights should be considered marital property. We agree with the wife

that all pension rights accruing during a marriage are classified as marital property. 

See Kendrick, 902 S.W.2d at 926. However, after the ma rital property c lassification is

determined, the remaining issue is what is an equitable division of that portion of the

marital property. We cannot say the Trial Judge abused her discretion as a matter of

equity, in not awarding one-half of the pension which accrued during the marriage,

since arguably the wife was making no contribution to the marriage during the years

they were living apart. Accordingly, we affirm the Trial Judge on this issue.

We affirm the judgment of the Trial Court, as modified, and remand

with one-half of the cost assessed to each party.
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__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Don T. McMurray, J.

___________________________

Charles D. Susano, Jr., J.