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

CLARK MATTHEW EARLS v. SHIRLEY ANN EARLS
Direct Appeal from the Circuit Court for Williamson County

No. II-98458 Russ Heldman, Judge

No. M1999-00035-COA-R3-CV - Decided May 31, 2000

This appeal involves a marriage irretrievably broke n by a catastrophic injury

to the wife. The parties separated after attempting

to cope with

the wife’s condition for over one year, and the husband filed for an irreconcilable differences divorce in the Circuit Court for Williamson County. The wife agreed that the parties had irreconcila ble differences bu

t resisted the divor

ce because she

desired to continue being covered by the husband’s employ er-provided group medica l i nsurance. The trial court heard the evidence without a jury and declined to gra nt the husband a

divorce or to declare the parties di vorce d. The trial court also awarded cu

stody of the c

hild to the wife des

pite the parties’ agreement

and the lack of e

vidence that the w

ife was phy

sically and psychologically able to shoulder the responsibilities of being the custodial parent. Thehusband has appealed. We have determined that the record contains ample evidence to declare these parties divorced in accordance

withTenn. Code Ann. § 36-4-129(b) (Supp. 1999). We have also determined that the evidence does not support the trial court’s decision to award custody of the parties’ child to the wife and that the trial court’s award of spousal support to the wife should be modified.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in Part; Modified in Part; and Remanded

K OCH , J. d eli vered the opinion of the court in which C OTTRELL , J. joined. C OTTRELL , J. filed a concurring opinion. C AIN , J. filed a dissenting opinion.

Thomas F. Bloom

and Rob yn Ryan, Nashv

ille, Tennessee,

for the appellan

t, Clark Matthew Ea

rls.

R. E. Lee Davi

es, Franklin, Te

nnessee, for the

appellee, Shirle

y Ann Earls.

OPINION

ClarkMatthews Earls and Shirley Ann Holman Earls met when they were approx imatel y twenty years old. B othworked, and Mr. Earls also boxed pro fessionally . Their son was bor n in July 1991, and they were married two y ears later in July 1993. While Ms. Earls had been married- 2 -

prev iou sly, this was Mr. Earls’ first marriage. The parties returned to Williamson County in 1996 after Mr. Earls failed to e

stablish himself as

a boxer in Las Ve

gas. Following

their return, Ms.

Earls managed an apartment complex, and Mr. Earls held part-time jobs at Service Merc handise Company and United Parcel Service.

Ms. Earls suffered an unexpected and catastrophic injury in March 1997 when an

aneurism
near her spine bu rst. She wa s left a quad riplegic and faced a long, difficult period of rehabilitation to r egaineven partial use of her arms and legs and to provide even a minimal level of selfsuffic iency

. Mr. Earls took a leave of absence from work in order to help Ms. Earls with her rehabilitation. Mr. Earls’ parents also moved to Middle Tennessee for eleven months to help their son, daughter-in-law, and grandson. When Ms. Earls was released from the rehabilitation ce

nter in June 1997, the parties moved to a mobile home

in Wartrace because Ms. Earls wanted to be closer to her father. Mr.

Earls agreed

to move even though

it significantly

increased his co

mmuteto work.

The rehabilitation pr

ocess was slow an

d difficult. For their own re asons, each par

ty became discouraged

and depresse

d. Mr. Ea rls was frustrated because he believed that Ms. Earls was not pursuing her re

habilitation as vig

orously as she could, and M

s. Earls became depressed and angry about the cruel blo w fat e had deal t he r. U nfo rtu nat ely, each party became the target of the other’s frustration and anger. Eve ntually, the

pressure and str

ain drove the par

ties apart. They

began to argue frequently

and to call each o

ther names. Even

tually, the te

nsion in the househo

ld became so intense that Mr. Earls’ pa

rents decided to m

ove back to

their home

in Cleveland, Tennessee rather than endure the constant fighting between their son and daughter-in-law.

As time passed, t he parties became less communicative and more distant. The constant pressure and tension extinguished their feelings for each other. From Ms. Earls’ point of view, Mr. Earls kept providing her care, but he was only providing her “the basics, you know, here’s your food; here’s your water; here’s y our pill; here’s things that you need.”

From Mr. Earls’ p

oint of view, Ms. Earls continued to be angry and resentful about her injury and stopped expressing any affection for him or appreciation

for his efforts to

assist her. As Mr. E

arls described i

t, Ms. Earls was “v

ery cold and bitter,” and “all I could do is to be there for her.” Approximately

fifteen months af

ter Ms. Earls’ inju

ry, Mr. Ear

ls told her that he had contacted
a law yer and tha

t he wanted a divor

ce. Ms. Earls did n

ot disagree tha

t their relationsh

ip wa s irretrievably

broken, and in ea

rly July 1998, she movedout of the handicapped accessible apartment where they had moved and went to live with her mother and step-father. The parties agreed to an irreconcilable

dif fere nces divorce and, on July 16, 1998, signed a marital dissolution agreement. The agreement

provided that the parties would have joint cust ody but that the child would live “pri mar ily” with Mr. Earls. It also provided that Ms. Earl s would not be requi red to pay c

hild support because Mr. Ear

ls was receiving

the child’s SSI

payments ste

mming from Ms. Earl s’ medical condition.

Mr. Earls filed the ir

reconcilable di

fferences divo

rce complaint on July

17, 1998. Ms. Earls informedh i m that she no longer agreed to the terms in the marital dissolution agreement, and on1 The trial court commented “No way José has she done that as far as I ’m concerned.”

- 3 - August 5, 1998, she filed a

n answer and cou

nterclaim. While sh

e admitte d that t

he parties had “irreconcilab

le differences” that were “ permanent,” she requested that the trial court declare the marital dissolution agre

ement void becau

se it had been procured through undue inf luence and dure

ss. She did not request a divorce of any sort, but she requested spousal support and a t em porary restraining order preventing Mr. Earl s from re moving her from his employer-provided medical insurance and from concea ling or dissipating

marital assets. Mr. Earls denied the undue influence andduress claims,

and on December 14, 1998, filed an amended complaint seeking a divorce on the ground of inappropriate marital conduct. Three days later, Ms. Earls denie d the inappr opriate marital conduct allegation and

responded, in accordance with Tenn. Code Ann. § 36-4-120(a) (Supp. 1999), that any ill c

onduct on her par

t was caused by

ill conduct on the pa

rt of Mr. Earls.

The first d ay of trial occurred on March 10, 1999. By this time, Ms. Earls was still not requesting a divorce of any sort but was requesting spousal support. B efore the proof was taken, Ms. Earls informed the court that the parties had agreed tha t Mr. Earls

should have custod

y of the chil

d butalso insisted that she should have the right to reopen the custody question whenever she thought that she was suf fic ien tly rehabilitated to take care of h er son. The trial c

ourt responded to

this announcement

by suggesting joint custody with Mr. Earls being the

“residential pa

rent.” When both parties agreed to the suggestion, the trial court announced: “Then that woul d be the decree of the court withrespect to the custody issue.” With the custody issue seemingly resolved, neither party presented the evidence normally associated with custody disputes.

The trial reconvened on March 26, 1999, and the parties concluded presenting their evidence andargument

by noon. After

deliberating f

or approximately

two hours, the tria

l court returned

to the bench to deliv

erits rul ing. Firs t, t he co urt ann oun ced t hat Mr. Earl s ha d no t pr ove d by a preponderance

of the evidence

that Ms. Earls had engaged in “cruel and inhuman treatment.” 1 The court also concluded

that Ms. Earls’ “right of privacy . . . estops this court f rom going so fa

r as to finding any choice that she’s made with respect to her body to be cruel and inhuman treatmen t towards Mr. Earls.” Then, turning to the question of custody, the

court awarded s

ole custody of the child to Ms. Earls because Mr. Earls’ relationship w ith Laura Moore “jeopardized the child in a moral sense.” The court ordered Mr. Earls to pay Ms. Earls $570 per month in spousal support until her death, $300 per month in ch ildsupport, as well as all her accrued and future medical expenses notcovered by insurance. Finally, the court permanently e njoined Mr. Earls from “coming around Laura Moore . . . to promote and protect the marriage relationship which exists and will exist in thi s case until I’m reversed

or something new comes before the [c]ourt.” On this appeal, Mr. Earls takes issue with the trial court’s refusal to declare the parties divorced,its custody decision, its spousal and child support orders, and with the blanket injunctionagainst associatingwith Ms. Moore as long as he was married.2 Over a century ago, the courts believed that they were duty bound to uphold marriage as “the most sacred of domest

ic relations.” DeArmond v. DeArmond , 92 Tenn. 40, 44, 20 S.W. 422, 423 (1892). This view has lon g si nce been replaced by the less moralistic and more human view that when a marriage is irretrievably broken, both society at large and the parties them se lves have “no interest in perpetuating a status out of which no good can come and from which harm may result.” Lingner v. Lingner , 165 Tenn. 525, 534, 56 S.W.2d 749, 752 (1933); see also Hamm v. Hamm , 30 Tenn. App. 122, 141-42, 204 S.W.2d 113, 121-22 (1947).

The trial court mistakenly believes that the General Assembly revived this outmoded notion in 1996 when it enacted Tenn . Code Ann. § 36-3-113 (1996). This statute was pa

ssed to shield Tennessee from being required to recognize same-gender marriag es performed in other states

. Acco rdi ngly, it ex tolls heterosexual marriage as the “fundamental building block of our society .” It stops far short, however, of endorsing the notion that either individual or societal interests will be advanced by condemning two persons to loveless marital unions.

- 4 - I. W HETHER THE P ARTIES S HOULD BE D IVORCED The trial court, perceiving itself as the protector of the institution of marriage, 2 declined to divorce the parties on two grounds. First, it concluded that Mr. Earls failed to carry his burden of proving the existence of one of the grounds for divorce in Tenn. Code Ann. § 36-4-101 (Supp. 1999). Second, the trial court concluded that the parties should not be divorc ed because Ms. Ea

rls would “be more aggressive i

n pursuing reco

nciliation” once

Mr. Earls’ divorce complaint was dismissed. This reasoning demonstrates a fundamental misunderstanding of the divorce statutes and a fanciful interpretation of the evidence.

A.

For at least one hundred

and fifty years, the courts of this state have been empowered to g rant divorces when a spouse engages in “cruel and inhuman treatment

or conduct towards the spouse as renders cohabitation unsafe and improper.” Tenn. Code Ann. § 36-4-101(11); Code of Tennessee § 2449(1) (1858). T he courts’ view of the type of conduct that amounted to cruel and inhuman tr ea tmenthas changed over the years. For a long time, the type of treatment that was considered cruel and inhuman enough to warran t a divorce consisted of “the willful, persistent causing of unnecessary suffering, whether in rea lization or apprehension, whether of body or mind, in such a way as to render cohabitation dangerous and unendurable.” Gardner v. Gardner , 104 Tenn. 410, 412, 58 S.W. 342, 343 (1900) overruled on other grounds , Jackson v. Jackson , 186 Tenn. 337, 342, 210 S.W.2d 332, 335 (1948) ; Russell v. Russell , 3 Tenn. App. 232, 245 (1926).

The courts further limited the conduct that would support a divorce on the grounds of cruel andinhuman treatment by pointing out that “[m]ere acerbity of temper, occasional reproaches, r ude3 Tod ay, this sort of conduc t would be considered to be domestic abuse. See Tenn. Code Ann. § 36-3-601(1) (Supp. 1999).

4 Shell v. Shell

, 34 Tenn. (2 Sneed) 716, 728-29 (1855).

5 See Tenn. Code Ann. § 36-4-101(11).

6 The trial court explained that “I do not agree with what the C ourt of Appea ls said in that case, because what the Court of Appeals did

without the sanction of the Tennessee Supreme Court changed what all the inappr

opriate marital condu ct and/or cruel and inhuman treatment cases had said for years just to say that cohabiting is notacceptable. Any series of misconduct flies in the face of all the prior law.”
- 5 - language by

the husband towar

d the wife, and ev

en threats of viol

ence where non

e is attempted, 3 do notconstitute ground[s] for divorce under our statutes.” Watson v. Watson , 25 Tenn. App. 28, 34, 149 S.W.2d 953, 957 (1940). In those day s, the courts

required acts of “cold-blooded cruelty and barb ari ty, on the part of husb ands toward dutif

ul and innocentwives” 4 in order to protect the institution of marriage from the complaints of a

wife who “permit

s herself to become very unhappy and dissatisf

ied with her condition by magnifying the faults and indiscretions of her husband, brooding over imaginary wrongs, or indulging in a feeling of opposition to that authority and control which properly belongs to him, as head of the family.” Shell v. Shell , 34 Tenn. at 722.

Those chau vin ist ic d ays have long since passed, and this court has marked their passing on at least two occasions. First, in 1988, the Eastern Section held that con duct no longer must be dangerous or unendurable t o amount to cruel and inhuman treatment. In doing so, the court granted
a husband a divorce

from a suicidal wife because “any series of misconduct which makes continued cohabitation unacceptable is sufficient to meet the statutory requirement.” White v. W hite , Carroll Eq. No. 3, 1988 WL 101253, at *1 (Tenn. Ct. App. Oct. 3, 1988) (No Tenn. R. App. P. 11 application filed). Four years later, after the Gene ral Assembly changed the “cruel and inhum an treatment”

ground to

“inappropriate marital conduct,” 5 the Western Sectio n of this court, following White v. W

hite , upheld a divorce granted to a husband who ha

d cared for his sp

ouseduring a long illn ess. The court found that the wife’s conduct during the illness was “unacceptable” and h a d caused the husband “mental anguish and distress.” Brown v. Brown , No. 02A01-9108-CV-00168, 1992 WL 5243, at *3 (Tenn. Ct. App. Jan. 16, 1992) (No Tenn. R. App. P. 11 application filed).

The trial court

in this case brushed Brown v. Brown aside because it did not

agree with the rationale of the decision. 6 We choose to side with our colleagues. It is not the Court of Appeals but the trial court who misperceives Tennessee’s current public policy re garding divorces based on the ground of inappropriate marital conduct. Upon proof of any ground f or divorce in Tenn. Code Ann. § 36 -4-101, including inappropriate marital conduct, the General Assembly ha s empower ed th e courts to “grant a divorce to the party who was less at fault or, if either or both parties are entitled to a divorce, declare the parties to be divorced, rather than awarding a divorce to either party alone.” Tenn. Code Ann. § 36-4-129(b) (Supp. 1999 ). Accordingly , a Tennessee co

urt should grant a7 Both parties testified

at some length ab

out Ms. Earls’ reh

abilitation. I

nitially, Ms. E

arls insisted that she did everything her healthcare givers told her to do, but later she conceded that she stopped her rehabilitation program for a periodof time, that she de clined to use cer

tain apparatuse

s, andthat she did not per

form her home exer

cises. Mr. Earls

also testified t hat Ms. Earls did not aggressivel

y pursue the self-help activities and devices available to her. Thetrial court even tually decided that it was “estopp

ed” to consider th

ese facts because to do so would infrin

ge on Ms. Earls’ right of privacy protected by the Constitution of T ennessee. While the trial court’s constitutional analysis is fl awed, its co nclusion i s correct. E ven though considering this evidence does not have constitutional overtones, the progress of Ms. Earls’ rehabilitation is irrelevant to the issue of grounds for divorce except wit h regard to th e conduct it may have caused t he parties t o engage in. Thus, Ms. Earls did no t engage in inappropriate marital conduct by not seeking to rehabilitate herself more aggr ess ive ly. However, both parties’ frustrations over her injury and rehabilitation may have caused either or both of t

hem to act in way

s that were not ap

propriate for ma

rried couples.

- 6 - divorce from

the bonds of matrimony whenever there is evidence of continued misconduct by one or both spouses that makes continued cohabitation unacceptable.

B. It remains to be decided whether Mr. Earls has proved by a preponderance of the evidence that between March 1997 and July 1998 either or both of the parties engaged in a repeated co

urse of conduct that made

continued cohabi

tation unaccepta

ble. This inquiry

is rendered less

difficult because the parties have already decided for themselves – they have determined that cohabitation is no longer acceptable to them because they ha ve been living apart since July 1998. The evidence in this case clearly demonstrates that both parties have eng aged in conduct inappropriate in a marital relationship. Acco rdi ngly, the evidence overwhelmingly preponderates ag ainst the trial court’s conclusions that “nothing that Ms. Earls did . . . caused the break-up of

the marriage”

and that Ms. Earls was “waiting for this lawsuit to go away” before pur sui ng a r econ cil iat ion mor e agg res siv ely.

The divorce question does not hinge on the fac

t that Ms. Earls

was catastrophically injured in March 1997. Everyone involved wi th this case recog

nizes that neither M

s. Earls nor Mr. Ea

rls is responsible for this misfortune. It does not eve n hing e upon Ms. Earls’ e fforts to rehabil

itate herself or the progress of her rehabilitation despite the emphasis these matters received in the trial court. 7 The decision regarding the existence of grounds for divorce depends upon the par ties’ conduct toward each other.

WhileMs. Earls hadno control over the fact that she was injured, she did have control over how she treated Mr. E

arls. While it is u

nderstand able how she might be resentful and depressed about her co ndition , she could have refrained from taking her anger out on Mr. Earls or f rom throwing objects or from e ventually be

comi ng cold and bitter without expressions of affection or gratitudefor his efforts. B y the same to

ken, Mr. Earls co

uld have kept his fr

ustration and ang

er in check. He too could

have avoided

the name-calling

, the arguments,

and the attitude th

at Ms. Earls8 The trial court was e vidently piqued at the testimony that Mr. Earls spat at his wife on one occasion, that he had pressured her into signing the maritaldissolution agreement, and that he had kissed Ms. Moore on the mouth. Acco rdi ngly, the trial court stated that it would grant the divorce to Ms. Earls had

she been s

eeking o ne. We do not quibble with the trial court’s conclusion that Mr. Earls’ “fault” exceeds Ms. Earls’ “fault.” But even conce ding this point,

the trial court co

uld still have declared the parties divorced under Tenn. Code Ann. § 36-4-129(b) bec ause the record clea

rly demonstrates that both parties contributed to the eventual disintegration of their marriage.

- 7 - was not trying

hard enough to rehabilitate herself. As time passed, the parties’ rancor grew, and the
co nfront ations and arguments b ecame more than

isolated and infr

equent incidents.

The parties’ disagreements

escalated to the point

where Mr. Earls’ parents moved back home because they were no longer able to to lerate the atmosphere in the Earls’ house. Thereafter, the rate of the disintegrationof the parties’ relationship accelerated as the burden of Ms. E

arls’ medical condition grew heavier and their external support diminished.
By the time the case reached the courts, both Mr. Earls and Ms. Earls had conce ded that their differences were irreconc ilable. Ms. Earls r

esisted Mr. Earls ’ divorce and did not seek a divorce of her own, not out of affection for Mr. Earls, but because she desired to avoi d lo sing the health insurance provided by Mr. Earls’ employer. Mr . Earls’ g ro up medical benefits should not have played a role in determining whether the parties should be divorced. While the courts should take the parties’ desires into consideration, see Turner v. Bell , 198 Tenn. 232, 249, 279 S.W.2d 71, 79 (1955); Lingner v. Lingner , 165 Tenn. at 534, 56 S.W.2d at 752; Herchenroeder v. Herchenroeder , 28 Tenn. App. 696, 701, 192 S.W.2d 847, 849 (1945), they must ultimately render a decision ca lled for by the law a

nd the facts. Unde

r the facts of this

case, Ms. Earls’ concern regarding her future medical care should have been addressed in the division of the marital estate and in

spousal support and should not have influenced the decision on whether to grant a divorce.

When the trial court heard this case in March 1999, the parties’ relationship had disintegrated andtheir love and affection had beenextinguished. The y had been s

eparated for te

n months with
no effort or intention to rekindle their relationship. These circumstances had not changed when t

heir lawyersargued the

case before this court. Accordingly, the trial court should h

ave found that bot

h parties engaged in an inappropriate course of conduct over m any months that rendered continued cohabitation as husband and wife unacceptabl e. On remand, the trial court shall enter an order declaring the parties divorced in accordance with Tenn. Code Ann. § 36-4-129(b). 8

II. C HILD C USTODY
The trial court initially acceded to the parties’ agreed- upon joint custodyarrangement with primary physical custody

being awarded to Mr. Earls. However, the court changed its mind s

olely because it decid ed that the child wa s “jeopardized in t

he moral sense” b

ecause of Mr. Ea

rls’ relationship

with Ms. Moore. Eve

n takin g into acc ount the trial cour t’s invocation of th

e parties’ credibility, the totality

of the evidence, considered objectively, indicates that the court has imbued- 8 -

this relationship with

more significa

nce than it

deserves. Accordingly, we reverse the trial court’s decision awardi

ng custody

to Ms. Earls.

A.

Dec isions involving custody and visitation are

among the most impo

rtant decisi

ons in a divorce case. The court

s mu st devis e custody arrangements that promote the development of the children’s relationship

with both parents and interfere as little as possible with post-d ivorce family decision- making. See Aaby v. Strange , 924 S.W.2d 623, 629 (Ten n. 1996 ); Adelsperger v. Adelsperger, 970 S.W.2d 482, 484 (Tenn. Ct. App. 1997). These decis ions are not intend ed to reward or to punish parents, see Turner v. Turner, 919 S.W.2d 340, 346 (Tenn. Ct. App. 1995); Barnhill v. Barnhi l l , 826 S.W.2d 443, 453 (Tenn. Ct. App. 1991), and, in fact, the interests of the parentsare secondary to those of the children. S ee Lentz v. Lentz, 717 S.W.2d 876, 877 (Tenn. 1986). The goal of these decisions is to promote the children’s best interests by placing them in an environment

that will best serve their physical and emotional needs. See Luke v. Luke, 651 S.W.2d 219, 221 (Tenn. 1983).

No hardand fast rules exist for determining which custody and visitation arrangement w

ill best serve a child’s needs. See Taylor v. Taylor, 849 S.W.2d 319, 327 (T enn. 1993); Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn. Ct. App. 1983). The inquiry is factually driven and requires the courts to caref

ully weigh numerous considerations. See Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn. 1990); Rogero v. Pitt, 759 S.W.2d 109, 112 (T enn. 1988); Bah v. Bah, 668 S.W.2d 663, 666 (Tenn. Ct. App. 198 3); see also Tenn. Code Ann. § 36-6-106 (1996).

The comparative fitness analysis is not intendedto ascertain which parent has been perfect because perfection is as

unattainable in

parenting as it is in life’s other activities. See Rice v. Rice , 983 S.W.2d 680, 682-83 (Tenn. Ct. App. 1 998). Courts understand that parents have their own unique virtues a

nd vices. See Gaskill v. Gaskill , 936 S.W.2d 626, 630 (Tenn. Ct. App. 1996). Acco rdi ngly, Tennessee’s courts do not expect parents to prove that they are exemplary or that the other parent is completely unfit. Instead, they carefully consider

the conduct and

circumstances of the parents to determine which of the available cu stodians is c omparatively more fit to have permanent

custody of the child. See Julian v. Julian , No . M1997 -00236-CO A-R3-CV,

2000 WL 348317, *6 (Tenn. Ct. App. Apr. 4, 2000) (No Tenn. R. App. P. 11 application filed).

Since stability is important to any child’s well-being, the courts h ave emphasized the import ance of continuity of placement in custody and visitation cases. See Taylor v. Tay lor, 84 9 S.W.2d at 328; Contreras v. Ward, 831 S.W .2d 288 , 29 0 (T enn . Ct . Ap p. 1 991 ). C ont inu ity, however, does not trump all oth er consideratio

ns. Depending on

the facts, a par

ent who has b een a child’s primary caregiver may not necessarily be compar atively more fit than

the other parent

to have permanent custody of the child. Custody and vi sitation determinat ions often hinge on subtle factors, includi

ng the parents’ demeanor and credibility

during the divor

ce proceeding

s themselves. Acc

ordingly, appellate court

s9 This testimonyprompted the trial court to comment: “Why do people that are not married t o each other ki ss each other? I don’t understand that. But go ahead, if y ou want to take that position.”

- 9 - are reluctant to second-guess a trial court’s decisions. Trial courts must be abl e to exercise broad discretion in these matters, but they still must base their decisions on the proof and upon the appropriate

application of the applicable principles of law. See D v. K , 917 S.W.2d 682, 685 (Tenn. Ct. App. 1995). Thus, we review these decisions de novo on the record with a presumption that the trial court’s findings of fact are correct unless the evidence preponder ates otherwise. See Nichols v. Nichols, 792 S.W.2d at 716; Doles v. Doles , 848 S.W.2d 656, 661 (Tenn. Ct. App. 1992).

B.

The parties had alre

ady determ

ined for themselv

es where their c

hild’s best i

nterests lay. They knew that Ms. Earls coul

d not care for the

child on her own, a

nd so they agreed that they should have jointcustody with Mr. Earls being the custodial parent. They also agreed upon liberal visitation for Ms. Earls. They understood that this arrangement would require Mr. Earls to obtain hel

p because he was continuing to hold down two jobs. Mr. Earls received this assistance from his mother and from Ms. Moore, a woman introduced by a mutual acquaintance following the parties’ separation. Ms. Moore worked a

s a waitress in

a Steak ‘N Shake restaurant and had a son the same age as the parties’ son. Ms. Earls was aware that Ms. Moore was taking care of her son and apparently did not object.

Ms. Moore and Mr. Ear ls were candid a bout their relatio

nship. They h

ad a good deal in
common in that they were both trying to ra ise children on their own. They both worked long hours andfaced signific

ant financial pr

essures. They

decided that pooli

ng their effor

ts would be mutually beneficial.Mr. Earls realized that Ms. Moore could help provide bab ysitting when h e was workin g. Thus, when his mother co uldnot assist him, Ms. Moor e could come to his

apartment when he left for work early

in the morning and could oversee his son’s morning routine before the child left for school.

These

circumstances caused Mr. Earls and Ms. Moore to become close and to depend upon eachoth er. They conc eded that they had kissed on several occasions as Ms. Moore left the apartment. 9 Ms. Moore candidly stated that it

“wasn’t the rig

ht thing to

be going on” and insisted that she had never been in Mr. Earls’ bed and had never had sex withhim. She also explained that their relationship would

not advance further until after Mr. Earls was divorced. Ms. Moore disclosed that she had slept with her son on Mr. Earls’ couch on several occasions when she had car trouble, but she insisted that she hadnot moved into Mr. Earls’ apartment and that she did not keep any of her things there.

The trial court found

Ms. Moore to

be a “fairly

credible and very ho

nest” witness. De

spite the absence of any other evidence in the record that Ms. Mo

ore and her son ha

d moved in

with Mr. Earls, the trial court co

ncluded that Ms.Moore was “living” with Mr. Earls. In the trial court’s mind,10 The trial court state d: “As far as I

judge what Ms.

Moore had to s ay about y’all’s relationship, [it] would give this court cause to grant her a divorce, that means Mrs. Earls, but she doesn’t want one and I’m not going to grant a divorce for her. She hasn’t asked for one, and she doesn’t want one and the law doesn’t require me to.”

11 The trial court

stated: “As long as these people [the Earls] r

emain married it mo

rally jeopardizes this child to be exposed to Ms. Moore overn ight with Mr. Ear

ls in what is clear

ly at least
on the surface to

be perceived a

t this point in

time to be a romantic situation. That’s not good for

. . . [the chi

ld] t o see that. ” Rather than simply addressing possible romantic overnight visits, the court barred Mr. Earls from all contact with Ms. Moore.

12 Following the entr

y of the or

der, Mr. Earls, a

s the custodial par

ent, will be entitle

d to receive the SSI payments for his son resulting fr om Ms. Earls’ disability.

13 The trial court appe

ars to have agr

eed with Ms. Earls ’ argume nt that she should be permittedto seek a modifica tion in the custody arrangement whenever she decides that her physical condition has improved enough to enable her to take care of the parties’ child. However, an improvement

in Ms. Earls’ condi

tion is not, as a matte

r of la w, a change d circumstance t hat will
w arrant reopening the issue of custody. Changed circumstance s must involve the chi ld’ s circumstances rather

than those of the non-custodial parent. See White v. White , No. M1999-00005- COA-R3-CV, 1999 WL 1128840, at *3 (Tenn. Ct. App. Dec. 10, 1999) (No Tenn. R. A pp. P. 11 application filed); McCain v. Grim , No. 01A01-9711-CH-00634, 1999 WL 820216, at *2 (Tenn. Ct. App. Oct. 15, 1999) (No Tenn. R. App. P. 11 application filed); Gorski v. Ragains , No. 01A01-9710- GS-00 597, 1999 WL 511451, at *4-5 (Tenn. Ct. App. July 21, 1999) (No Tenn. R. App . P. 1 1 application filed).

- 10 - therefore, the relationship between Mr. Earls and Ms. Moore would have provided Ms. Earl s with sufficient grounds for a divorce had she sought one. 10 The trial court also concluded that it provided
a basis for disregarding the parties’ agreed upon custody arrang ement that it had already approved, andfor entering th

e quite unprece

dented order pe

rmanently e

njoining Mr. Ear

ls from coming around Ms. Moore as long as he is married. 11

The record does

not contain one sc

intilla of evidenc

e that Mr. Earls’ relationship with M s. Moore, whatever in truth it mi ght be, has or will have an adverse impact on the parties’ child. Considering the record

objectively

, Mr. Earls’ rel ati ons hip wit h Ms . Mo ore, bor n ou t of nece ssi ty, simply does not reflect

on his ability to be his son’s custodial parent. There being no substantial and material evidence in the record to requir e the trial court t

o second-guess the parties’ own custody and visitation arrangement, we hold that the court erred by not a pproving the custody

arran gement originally proposed by the parties. Accordingly , on remand, the trial court shall enter an orde r granting the parties joint c ustody of the

ir son with

primary phy

sical custody

in Mr. Earls. 12 Should M s. Earls de sire to change this custody a

rrangement, sh

e will have the bur

den of proving th

at a material change in her

child’s circumstances has occurred and that she is comparatively more fit than Mr. Earls to be the

child’s custodial p

arent. 13- 11 - III. S POUSAL S UPPORT

Even though the trial court declined to declare the parties’ divorced, it ordered Mr.Earls to pay Ms. Earls, as spousal support, $570 per month until h

er death. The co

urt also directed

Mr. Earls to pay all of Ms. Earls’ accumulated medical expe nses not covered by insurance and to be responsible

for all her future

uncovered medical expenses. These obligations, combined with Mr. Earls’ other court-ordered obligations, far exceed his income. Accordin gly, after considering the factors in Tenn. Code Ann. § 36-5-101(d)(1) (Supp. 1999), we have determined that the trial court’s spousal support order must be modified. A.

There are no hard and fast rules for spousal support decisions. See C rain v. Crain , 925 S.W.2d 232, 233 (Tenn. Ct. A pp. 1996); Stone v. Stone , 56 Tenn. App. 6 07, 615-16, 409 S.W.2d 3 88, 3 92-93 (1966). Tri

al courts have br

oad discretion to d

etermine whethe

r spousal support is needed and, if so, its

nature, amount,

and duration. See Garfinkel v. Garfinkel , 945 S.W.2d 744, 748 (Tenn. Ct. App. 1996); Jones v. Jones , 784 S.W.2d 349, 352 (Tenn. C t. App. 1989). Appe llate courts are generally disinclined to second-gue ss a trial court's spousal support decision unless

it is notsupported by

the evidence or

is contrary

to the public

policies reflec

ted in the applica

ble statutes. See Brown v. Brown , 913 S.W.2d 163, 169 (T enn. Ct. App. 1994) ; Ingram v. Ingram , 721 S.W.2d 262, 264 (Tenn. Ct. App. 1986).

Tenn. Code Ann. § 36-5-1 01(d)(1) (Su pp. 199 9) r efl ect s a p refe renc e for tem por ary, rehabili tative spous al support, as opposed to long-term support. See Herrera v. H errera , 944 S.W.2d 379, 387 (Tenn. Ct. App. 1996); Wilson v. Moor e , 929 S.W.2d 367, 375 (Tenn. Ct. App. 1996). The purpose of rehabilitative support is to enable the disadvantaged spouse t o a cquire additional 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. App. 1995); Cranford v. Cranford , 772 S.W.2d 48, 51 (Tenn. Ct. App. 1989). The purpose of long-term spousal support, on the other hand, is to provide support to a disadvant aged spouse w ho is unabl e to achieve some degr ee of self-sufficiency. See Loria v. Loria , 952 S.W.2d 836, 838 (Tenn. Ct. Ap p. 1997). T he statutory preference for rehabilitative support does not entirely displace other forms of spousal support when the facts warra ntlong term
or more op en- ended support. See Aaron v. Aaron , 909 S.W.2d 408, 410 (T enn. 1995); Isbell v. Isbell , 816 S.W.2d 735, 739 (Tenn. 1991).

Even though fault is

a relevant consideration when setting spousal support, see Tenn. Code Ann. § 36-5-101(d)(1)(K), these decisions are not intended to be punitive. See Duncan v. Duncan , 686 S.W.2d 568, 571 (Tenn. Ct. App. 1984); McClung v. McClung , 29 Tenn. App. 580 , 584, 198 S.W.2d 820, 822 (194 6). The purpose o f spousal support is

to aid the disadvan

taged spouse to become and remain

self-sufficient and, when economic rehabilitation is not feasible, to mitigate the harsh economic realities of divorce. See Shackleford v. Shackleford , 611 S.W.2d 598, 601 (Tenn. Ct. App. 1980). While divorced couples often lack sufficient income or assets to en able both of themto retain their pre-divorce standard of living, see Brown v. Brown , 91 3 S .W.2d at 169, the14 The accrued expense s were being re

paid in month

lyinstallments of $650 over eighteen months.

- 12 - obligor spouse may b

e able to provide s

ome "closing in m

oney" to e nable the disadva

ntaged spouse to approach his or her former financial condition. See Aaron v. Aaron , 909 S.W.2d at 411. Spousal support decisions hinge o n the unique facts of the case and require a careful balancing of the factors in Tenn. CodeAnn. § 36-5-101(d)(1). See Hawkins v. Hawkins , 883 S.W.2d 622, 625 (Tenn. Ct. App. 1994); Loyd v. Loyd , 860 S.W. 2d 409 , 412 ( Tenn. Ct. Ap p. 199 3). 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 6 59, 668 (Tenn. Ct. App. 1996); Crain v. Crain , 925 S.W.2d at 234.

B.

We have here a marriage of relatively short duration. While the parties were wed, they made ends meet by holding down three jobs between them. Following Ms. Earls’ illness and the par ties’ separation, their combined needs qui ckly outstripped the resources available to them. Support decisions are seldom easy, and they are certainly rendered more difficult when ther e are legitimate needs and insufficient resources. Mr. Earls paid Ms. Earls $211 per month in temporary support prior to the divorce decree. At trial, Mr. Earls pr

oposed to continue

this support; while M

s. Earls sugge

sted that she should

be responsible

for her accrued and future medical expenses and, in return, that Mr. Earls should pay her $570 per mon t h. Not only did the trial court order Mr. Earls to pay $570 pe r month in spousal support, but it also require d him to be responsible for Ms. Earls’ future uncovered medical expenses plus $14,878 in acc

rued medical expe

nses. 14
Beyond doubt Ms. Earls needs financial support. Her injury has left her comp

letely disabled, andthe prospects for significant rehabilitation are remote. Her monthly g overnment di sabili ty checks in the amount of $648 are her only current source of inco me other than the assistance she
re ceives from her mother a nd step-father.

At the same time, Mr

. Earls’ net monthl

y income

– approximately

$1,640 – is modest. In light of our modification of the trial court’s custody decision, Mr. Earls will be requ

ired to su pport himself and the parties’s child on this income plus the $323 monthly SSI payments which must be used for the child.

We have determined that Mr. Ea rls should pay short-term spousal support. Based on the le ngthof the ma

rriage, Ms. Ea

rls’ needs, Mr. Ea

rls’ ability

to pay, as we

ll as the fact that

he will
assume pr imary re sponsibility f or raising the pa

rties’ child, we h

ave determined t

hat Mr. Earls should pay Ms. Earls support in the amount of $450 per month from April 6, 1999 through March 31, 2006. Neither the amount nor duration of this support shall be modified or extended. We have also determine d that Mr. Earls sho uld continue to pay

the $144 monthly

premium for Ms. Ea

rls’ COBRA insurance coverage as long as it is available and that Mr. Earls shall receive a credit again

st15 Theseex penses amounted to $14,878 at the time o

f trial. In its f

inal judgment, the

trial court awarded Ms. Earls the $4,300 that had been paid into court and directed

her to use these funds to reduce the amount of these unpaid expenses. We affirm the trial court’s disposition of the funds paid into court. By applying these f unds to the accrued medical expenses, Mr. Earls’ liability of the accrued but unpaid medical expenses will be capped at $10,578.

- 13 - h is mon thl y sup por t ob lig ati on f or t hes e paym ent s as lon g as h e ma kes the m. F ina lly, we hav e determinedthat Mr. Earls shou ld shoulder the re

sponsi bility for p aying the balance of Ms. Ea

rls’ uncovered

medical expenses t

hat had accrue

d at the time of the t

rial not to exceed $1 0,578. 15 On remand, the trial court shall enter a support order consistent with this opinion. In addition t o establishing Mr. Earls’ spousal support obligation prospectively, the order shall give Mr.Earls credit for any spousal support payments made since April 6, 1999 that exceed the amount of the support established by this opinion.

IV. T HE A WARD OF A TTORNEY ’ S F EES
Mr. Earls also takes issue with the trial court’s decision to require him to pay Ms. Earls an additional $4,000 to defray her legal expenses. He asserts that heis unable to pay these expenses. Ms. Earls responds that she has no assets from which she can pay the se exp enses and that her condition renders her

unable to gener

ate additional inc

ome. She also

requests this court to order Mr. Earls to pay the legal expenses she has incurred as a re sult of this appeal.

In a divorce action, an

award of attorn

ey's fee s is treated as additional spousal support. See Smithv. Smith , 912 S.W.2d 155, 161 (Tenn. Ct. App. 1995); Gilliam v. Gilliam , 776 S.W.2d 81, 96 (Tenn. Ct. App. 1988). The decision to award attorney's fees lies within the sound discretion of the trial judge, see Aaron v. Aaron , 909 S.W.2d at 411; Brown v. Brown , 913 S.W.2d at 170, an d we will notinterfere with the trial judge's decision unless the evidence preponderates ag ainst it. See Batson v. Batson , 769 S.W.2d 849, 862 (Tenn. Ct. App. 1988). A pa rty 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).

The record leaves little room for doubt that Ms. Earls currently lacks the resourc es to pay her lawyer and that her future income from all sources will barely cover her necessities. It is equa lly clear that Mr. Earls has few exist

ing assets and tha

t his income is modest

when measured a

gainst his f uture obligations. However, Mr. Earls’ ability to earn income and to accumulate as sets is fa r superior to Ms. Earls’. Accordingly, we have no basis to second-g

uess the trial cou

rt’s decision to require Mr. Earls to pay

Ms. Earls $4,000 fo

r her legal expe

nses. However, we have determined that it would be appropr

iate to permit Mr. E

arls, at his elect

ion, to pay thi

s amount in a lump sum o r in installments

over two years from the date of the entry of the mandat e in this c ase. We have also determinedthat Mr. Earls should not be required to pay the legal expenses Ms. Earls has incurred as a result of this a

ppeal.16 See also Williams v. Williams , No. 01A01-9610-CV-00468, 1997 WL 272458, at *6-7

(Tenn. Ct. App. May 23, 1997) (No Tenn. R. App. P. 11 application fi led); Salimbene v. Salimbene , No. 87-194-II, 1987 WL 27748, at *1 ( Tenn. Ct. App . Dec. 16, 1987) (No Tenn. R. App. P. 11 application filed); Smith v. Smith , No. 86-43-II, 1986 WL 7621, at *2 (Tenn. Ct. App. July 9, 1986) (No Tenn. R. App. P. 11 application filed) (reversing a decision to remove two children from the custody of a mother who admitted to having sexual relations with four different men during the fi

rst three years following the divorce).

- 14 - V. M R . E ARLS ’ A SSOCIATI ON WITH M S . M OORE
One final issu e requ ires d iscus sion. In light of the evidence regarding Mr

. Earls’ relation

ship withMs. Moore, the trial court permanently enjoined Mr. Earls from “coming around” Ms. Moore
as long as heis married. The tr ial court’s explana

tion for this astonis

hing decision is th

at it did not believe it “to be in

the best interest o

f this marriage

for you Mr. E

arls to continue th

is relationship withMs. Moore.” As the court saw it, the injunction would “promote and p rotect the ma rriage relationship

which exists and will exist in this case until I am reversed or something new comes before the court.” At Mr. Earls’ request, we staye d this order while this appeal was pending. Courts may appropriately consider a c ustodial parent’s non-marital sexual activities in the context of a custody decision. See Lance v. Lance , No. 01A01-9801-CV-00036, 1998 WL 748283, at *3 (Tenn. Ct. App. Oct. 28, 199 8) (No Tenn. R.App. P. 11 applicat ion filed); Barnhill v. Barnhill , 82 6 S.W.2d at 453. However, we have repeatedly pointed out that cohabitation alone does not necessarily

provide grounds for changing custody when there is

no proof that it has

or will adversely affect the children. See Varley v. Varley , 934 S.W.2d at 666-67 ; Sutherland v. Sutherland , 831 S.W.2d 283, 286 (Tenn. Ct. App. 1991). 16 In order to shield young, impressionable children f rom these sorts of act ivities , the courts frequently enjoin the parents from engag ing in intimate sexual activities while the childre n are present. T

he trial court’s i

njunctio n in this cas e, however, far exceeds the custom

ary remed ies for non-marit

al sexual conduct.

No party on appeal

h as undertaken to defend this portion of the final order. We are not surprised because the order marks the first time that a trial court has enjoined a party from associating with another person even when the children are not present. The order cannot stand for three reasons. First, t

he record conta

ins a bsolutel y no proof th

at Mr. Earls’ re

lationship with Ms. Moore, whatever it is, has adversely affected or is lik ely to adversely affe ct the parties’ child. Second, the order infringes on Mr. Earls’ constitutionally protected right to associate with persons of his own choosing. Third, the rationale for the injunction – the trial court’s notion that the parties would reunite if Ms. Moore was out of the picture – is no longer relevant because we have dire cted the trial court, on remand, to enter an order declaring the p

arties divorced

. Thus, as a

matter of law, there is no longer a marriage to be preserved. Accordingly , the trial court’s injunction preventing Mr. Earls from associating with Ms. Moore while he is married is dissolved.- 15 - VI.

In summary, we reverse the portions of the April 6, 1999 final judgment in which the trial court (1) declined to divorc

e the parties, (2

) awarded custo

dy of the pa

rties’ child to Ms. E

arls and ordered Mr. Earls to pay child support, (3) directed Mr. Earls to pay $570 per month

in permanent ali mon y, and (4) ordered Mr. Earls to refrain from associating with Ms. Moore.We remand the case to the trial court with directions to enter an order consistent with this opinion (1) declaring the parties divorcedin accordance with Tenn. Code Ann. § 36-4-129(b), (2) awarding the parties joint custody of the ir c hil d wi th M r. E arl s re cei vin g pri mar y phys ica l cu sto dy, and (3) directin g Mr. Earls

to pay Ms. Earls $450 in spousal support in accordance with Section III of this opinion. We tax the costs in equal proportions to Clark Matthew Earls and his sure ty and to Shirley Ann Earls for which execution, if necessary, may issue.