IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 26, 2006 Session
WILLIAM JAMES JEKOT v. PENNIE CHRISTINE JEKOT
Appeal from the Circuit Court for Rutherford County
No. 48908 Robert E. Corlew, Judge
No. M2006-00316-COA-R3-CV - Filed on January 3, 2007
In this divorce case, the husband appeals the trial court’s division of marital property, the amount
of the award of rehabilitative alimony to the wife, and the grant of divorce to the wife based on the
husband’s adultery. The wife argues that she should have been awarded alimony in futuro rather
than rehabilitative alimony. After review, we find no error in the trial court’s division of the marital
property and the award of divorce to the wife based on the husband’s adultery. However, we do find
error in the award of alimony. We find that the wife is not capable of being rehabilitated and that
the amount of monthly alimony awarded should be altered. We affirm the judgment as to the marital
property and the award of divorce based on the husband’s adultery and modify the trial court’s
judgment to award the wife alimony in futuro in the amount of $9,000 per month.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as
Modified; Cause Remanded
SHARON G. LEE, J., delivered the opinion of the court in which CHARLES D. SUSANO , JR., J., joined.
D. MICHAEL SWINEY , J., filed a dissenting opinion.
William Kennerly Burger, Murfreesboro, Tennessee, for the Appellant, William James Jekot.
Darrell L. Scarlett, Murfreesboro, Tennessee, for the Appellee, Pennie Christine Jekot.
OPINION
I. Background
After nearly 30 years of marriage, Dr. William James Jekot ("Husband") filed for divorce,
alleging that he and Pennie Christine Jekot ("Wife") had irreconcilable differences. Wife answered
the complaint and counterclaimed for divorce based on allegations of Husband’s adultery. At the
time the divorce was filed, Husband was fifty-four years of age, Wife was fifty-three years of age,
and they had no children. The parties had few assets when they married; however, Husband was an
orthopedic surgeon with a successful practice, and during the course of the marriage, they acquired
substantial property. Following a bench trial, the trial court awarded the divorce to Wife on the
grounds of adultery and divided the marital assets. Wife received assets totaling $1,468,758, which
consisted of the marital residence and its contents, two parcels of real property on Bridge Avenue
in Murfreesboro, Tennessee, a Hyundai automobile, a Chrysler van, $411,253 from the parties’
Credit Suisse First Boston joint account, her IRA account, and a certificate of deposit in the amount
of $13,071. Husband received assets valued at $1,459,116, which consisted of real property on
Stonecrest Parkway in Murfreesboro, a 1998 Ferrari 328, a 1973 Jaguar E-Type, a 2002 Lexus
RX300, a 1996 Wavelength yacht, $146,854 from the Credit Suisse First Boston account, a First
Tennessee checking and savings account, his IRA, his 401(k) account, and all interest in his medical
practice. In addition, each party was awarded one-half of the net proceeds from the pending sale of
the medical office buildings in Murfreesboro. The order also awarded Wife rehabilitative alimony
in the total amount of $540,000, payable over a period of sixty months.
Husband's motion to alter or amend the trial court's judgment was denied, and this appeal by
Husband followed.
II. Issues
Husband raises the following issues on appeal:
1) Whether the trial court erred in its apportionment of marital property.
2) Whether the trial court erred in its award of alimony to Wife.
3) Whether the trial court erred in granting a divorce to Wife based upon Husband's adultery.
By way of a separate issue, Wife contends that the trial court erred in failing to designate her
alimony award as one in futuro.
III. Standard of Review
In a non-jury case such as this one, we review the record de novo with a presumption of
correctness as to the trial court’s determination of facts, and we must honor those findings unless
there is evidence which preponderates to the contrary. Tenn. R. App. P. 13(d); Union Carbide Corp.
v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). The trial court’s conclusions of law are accorded
no presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996);
Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).
III. Division of Marital Property
The first issue we address is whether the trial court erred in its apportionment of marital
property.
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In determining what constitutes an equitable division of marital property, T.C.A. § 36-4-
121(c) provides that the court is required to consider “all relevant factors,” which include:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability, earning
capacity, estate, financial liabilities and financial needs of each of the parties;
(3) The tangible or intangible contribution by one (1) party to the education,
training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets and
income;
(5) The contribution of each party to the acquisition, preservation, appreciation,
depreciation or dissipation of the marital or separate property, including the
contribution of a party to the marriage as homemaker, wage earner or parent, with
the contribution of a party as homemaker or wage earner to be given the same
weight if each party has fulfilled its role;
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of property
is to become effective;
(9) The tax consequences to each party, costs associated with the reasonably
foreseeable sale of the asset, and other reasonably foreseeable expenses associated
with the asset;
(10) The amount of social security available to each spouse; and
(11) Such other factors as are necessary to consider the equities between the
parties.
A trial court is allowed wide discretion in dividing marital assets, and its decision in that
respect is to be given “great weight” by this Court. Barnhill v. Barnhill, 826 S.W.2d 443, 449 (Tenn.
Ct. App. 1991).
First, Husband argues that the trial court erred in its division of the marital property by failing
to properly consider tax consequences and debts associated with some of the marital assets. In its
order dividing the parties’ marital property, the trial court noted that Husband was being allowed
property with a total fair market value of $1,459,116 and that Wife was being allowed property with
a total fair market value of $1,468,758.1 These totals were based upon values that the court assigned
to individual marital assets, as set forth in the trial court’s memorandum opinion. Husband asserts
that for the past several years, he has paid income taxes at the approximate rate of 33%. He argues
that the trial court “erred in assessing certain monies awarded the Husband which were based on tax-
deferred (pre-tax) amounts, while crediting to the Wife certain accounts upon which the income tax
had already been paid,” i.e., Husband argues that the values assigned to assets by the trial court did
1
These figures did not include the value of the previously noted medical office buildings because the sale of
such properties was still pending at the time of the court’s order.
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not reflect the true value of such assets, to Husband’s detriment. Specifically, Husband contends that
the 401(k) account, the First Tennessee business account, the medical practice cash and accounts
receivable, and his IRA were all awarded to him at a total pre-tax value of $1,052,206, whereas the
net value of these assets after payment of taxes will amount to only $700,769. Husband also argues
that the trial court erred in failing to deduct debts associated with his medical practice totaling
$210,166 from the value assigned to that asset and that $80,000 in accounts receivable associated
with the medical practice have a net value of only $53,280 after taxes.
We do not agree with Husband’s conclusion that the trial court failed to consider tax
consequences and debts associated with assets awarded in this divorce. It does not follow from the
mere fact that the trial court set forth a fair market value for each of the assets in controversy that the
trial court failed to consider that those values would be diminished as a result of tax consequences
or debts due. In its memorandum opinion, the trial court cited T.C.A. § 36-4-121(c) and thereby
stated the factors it considered in dividing the parties’ property. Included among these statutory
factors was subsection 9 which, as noted above, required that the court consider “[t]he tax
consequences to each party, costs associated with the reasonably foreseeable sale of the asset, and
other reasonably foreseeable expenses associated with the asset.” Further, in its order denying
Husband’s motion to alter or amend, the trial court stated as follows:
The Court rejects Dr. Jekot’s request that the Court redivide the
property in light of the tax considerations detailed in his Rule 59
Motion, upon the Court’s reaffirmation that it considered the tax
consequences, along with Dr. Jekot’s superior ability to acquire
capital assets, and other statutory factors, when effecting a division
that the Court determined to be equitable. ... .
There is nothing in the record before this Court contradicting the trial court’s assertions that
it considered tax consequences associated with assets awarded either party in the division of marital
property.
The trial court assigned a value of $146,000 to Husband’s medical practice. With regard to
Husband’s complaint that the trial court failed to consider debt and taxes associated with the medical
practice, the record shows that in valuing Husband’s medical practice, Husband’s own expert did
not include the $210,166 debt asserted by Husband. Further, Husband’s expert explained that the
difference between his valuation of Husband’s medical practice at $111,000 and Wife’s expert’s
valuation of the same asset at $146,000 was due to the fact that his own valuation was reduced by
taxes to be paid. However, Husband’s expert admitted that the accepted method of valuing money
does not permit the deduction of taxes and is a dollar for dollar valuation and further testified as
follows:
Q. So if you say don’t consider the tax consequence, which you
concede we should not, we need to add 33,000 to this 111 come up
with an accurate value of 144,000, don’t we?
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A. Yes.
...
Q. So you agree with me the correct method of valuing that according
to the ordinary business practice is $144,000, right?
A. Correct.
Additionally, we find a deficiency of proof with respect to the tax consequences asserted by
Husband. While Husband testified at trial that in recent years he has paid income tax at the rate of
approximately 33%, that testimony and copies of his recent tax returns appear to be the only
evidence submitted, other than the above noted testimony regarding his medical practice, as to any
tax consequences connected with the assets in question. Further, we find no proof that Husband
intends to dispose of any of these assets in the near future. Exactly when these assets will be subject
to income taxation and the amount of taxes Husband will be required to pay are matters of
speculation. As we stated in Hasty v. Hasty, No. 01-A-01-9504-CH00176, 1995 WL 567313, at *3
(Tenn. Ct. App. M.S., filed September 27, 1995), “[t]here is no way of knowing what the tax laws
will be when and if one of the parties sells a piece of property at some time in the future.” And with
specific regard to his 401(k) and IRA, Husband apparently does not consider that until these assets
are liquidated, they will continue to earn interest and dividends, offsetting to some degree any
amounts Husband will be required to pay in taxes.
Husband further argues that the trial court erred because, in dividing the marital property, the
court failed to credit Husband with monies distributed to Wife prior to entry of the divorce decree.
In this regard, Husband notes that the parties were separated for over two years and remained
separated at the time of the divorce. He states that during the period of separation, from July of 2003
until the trial in August of 2005, $306,770 was distributed to Wife from the parties’ joint assets.
Husband charges that these monies were used for the maintenance and improvement of the parties’
residence and for expenses associated with an animal shelter that was constructed during the
marriage so that Wife might pursue her interest in caring for and finding placement for homeless
dogs. Husband cites T.C.A. § 36-4-121(b)(1)(A) which defines “marital property” to include “any
property to which a right was acquired up to the date of the final divorce hearing, and valued as of
a date as near as reasonably possible to the final divorce hearing date.” He maintains that this
statutory language “would contemplate the post-separation division of any real or personal asset, in
anticipation of the final divorce, and where the funds, or other property, are not shown to be a
necessary part of the receiving spouse’s monthly support needs.” Husband contends that after
deducting a reasonable amount for support, the balance of the $306,770 distributed to Wife after
separation should have been considered by the trial court in reaching an equitable division of the
parties’ assets, whether as “an advance division of a marital interest,” or as a “gift, bequest or other
distribution” considered to be her separate property. We disagree.
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Husband’s argument that the trial court should have construed payments made to Wife before
the divorce for operation of the animal shelter and improvements to the residence to be a gift to Wife
or an advance division of marital property is negated by the decision of the Supreme Court of this
state in Alford v. Alford, 120 S.W.3d 810 (Tenn. 2003). In that case, the husband and wife had been
separated for more than half of their twenty-year marriage. Upon their divorce, it was ordered that
debts incurred by the wife during the period of separation be paid by the husband as marital debt.
Although both the Court of Appeals and the Supreme Court agreed that the debts were properly
designated marital debts, the Supreme Court rejected the Court of Appeals’ reliance upon prior case
law which had distinguished between marital debt and separate debt upon the basis of whether the
debt was incurred for the parties’ joint benefit. Instead, the Supreme Court held that all debt incurred
by either or both spouses during the marriage up to the date of the divorce is properly designated
marital debt. The Court further stated as follows:
[T]he debts incurred by Wife in the present case are marital because
they were incurred during the course of the marriage. Unless a court
has made provisions for the distribution of property in a decree of
legal separation, a period of separation before divorce has no effect
on the classification of debt as marital or separate. Separated parties
are still married. As the trial court in this case stated, “[t]hey cannot
be both married and divorced. Courts should not concern themselves
with the type of living arrangements chosen by adult parties to the
union. ... .”
Id. at 813-814.
The evidence in this case does not preponderate in favor of a conclusion that the payments
in question constituted anything other than the satisfaction of marital debt from marital assets, and
we find no error in the trial court’s failure to consider these payments in apportioning the parties’
assets.
In concluding with respect to the issue of the propriety of the trial court’s division of the
parties’ marital property, we note the well-settled rule that while there is a presumption that marital
property is owned equally, there is no presumption that marital property should be divided equally.
Bookout v. Bookout, 954 S.W.2d 730 (Tenn. Ct. App. 1997). Decisions as to the division of marital
property are dependent on the facts and circumstances peculiar to the case under review. See Wade
v. Wade, 897 S.W.2d 702 (Tenn. Ct. App. 1994). Our careful examination of the record convinces
us that the trial court’s division of the marital assets was rendered after proper consideration of the
factors set forth at T.C.A. § 36-4-121(c) and was supported by the evidence presented. The record
shows that there is parity between the parties as to some of these factors. For example, the parties
are both in their mid-fifties and apparently have no mental or physical health problems. However,
as to other of the statutory factors, Wife is relatively disadvantaged - most significantly with respect
to present and future economic prospects. In this regard, the trial court stated as follows in its
September 2, 2005 memorandum opinion:
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Dr. Jekot is a trained orthopedic surgeon and as such is very
employable with great earning capacity. Ms. Jekot is well-trained
with both bachelor’s and a master’s degree in business education and
education leadership, but she has not utilized her skills in the
marketplace in some twenty years, and, is therefore unlikely to find
immediate employment without some further training. Even so, Ms.
Jekot’s ability to contribute to her capital assets and income at this
stage in her life is limited while Dr. Jekot has the ability to continue
working and earning a substantial income.
While acknowledging that almost all of the marital assets were acquired through the efforts
of Husband, the trial court also recognized that Wife aided Husband in achieving his professional
goals and current earning capacity, noting her financial support of Husband during his school years
and her subsequent efforts in the community which aided him in building his medical practice.
We do not find that the evidence preponderates against any of these findings of the trial court
which well support its decision regarding the division of marital property, and Husband’s argument
to the contrary is without merit.
IV. Alimony
The next issue we address is whether the trial court erred in its award of alimony to Wife.
The trial court’s order provided that Wife be awarded rehabilitative alimony in the amount of
$15,000 per month for the first twelve months following the divorce, $10,000 for the succeeding
twenty-four months, and $5,000 for the twenty-four months thereafter for a total alimony award of
$540,000 to be paid over a sixty month period.
T.C.A. § 36-5-121(i) provides that, in determining whether payment of spousal support is
proper and in determining the proper form and amount of such support, a trial court must consider
all relevant factors, including the following:
(1) The relative earning capacity, obligations, needs, and financial resources of
each party, including income from pension, profit sharing or retirement plans and
all other sources;
(2) The relative education and training of each party, the ability and opportunity
of each party to secure such education and training, and the necessity of a party
to secure further education and training to improve such party's earning capacity
to a reasonable level;
(3) The duration of the marriage;
(4) The age and mental condition of each party;
(5) The physical condition of each party; including, but not limited to, physical
disability or incapacity due to a chronic debilitating disease;
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(6) The extent to which it would be undesirable for a party to seek employment
outside the home because such party will be custodian of a minor child of the
marriage;
(7) The separate assets of each party, both real and personal, tangible and
intangible;
(8) The provisions made with regard to the marital property as defined in § 36-4-
121;
(9) The standard of living of the parties established during the marriage;
(10) The extent to which each party has made such tangible and intangible
contributions to the marriage as monetary and homemaker contributions, and
tangible and intangible contributions by a party to the education, training or
increased earning power of the other party;
(11) The relative fault of the parties in cases where the court, in its discretion,
deems it appropriate to do so; and
(12) Such other factors, including the tax consequences to each party, as are
necessary to consider the equities between the parties.
On prior occasion, this Court has noted that, while all of the above factors - to the extent
relevant to the facts of a given case - should be considered in determining spousal support, "the two
most important factors are the demonstrated need of the disadvantaged spouse and the obligor
spouse's ability to pay." Anderton v. Anderton, 988 S.W.2d 675, 683 (Tenn. Ct. App. 1998).
As to the form of alimony, the legislature of this State has indicated its preference for
rehabilitative alimony when one spouse is found to be economically disadvantaged, as provided at
T.C.A. § 36-5-121(d):
(2) It is the intent of the general assembly that a spouse who is economically
disadvantaged relative to the other spouse, be rehabilitated, whenever possible, by
the granting of an order for payment of rehabilitative alimony. To be rehabilitated
means to achieve, with reasonable effort, an earning capacity that will permit the
economically disadvantaged spouse’s standard of living after the divorce to be
reasonably comparable to the standard of living enjoyed during the marriage, or
to the post-divorce standard of living expected to be available to theother spouse,
considering the relevant statutory factors and the equities between the parties.
(3) Where there is such relative economic disadvantage and rehabilitation is not
feasible in consideration of all relevant factors ... then the court may grant an order
for payment of support and maintenance on a long-term basis or until the death or
remarriage of the recipient, except as otherwise provided in subdivision (f)(2)(B).
Guided by the above statutes and case law, we respectfully disagree with the trial court’s
decision that alimony payments to Wife should begin at the rate of $15,000 a month and that Wife
should receive rehabilitative alimony rather than alimony in futuro.
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First, there is no question that an award of alimony was justified given the length of the
parties’ marriage, the contributions by Wife to the advancement of Husband’s career, the
substantially inferior earning capacity of Wife, and the affluent lifestyle enjoyed by the parties during
their marriage. However, while we agree that Wife is entitled to some amount of alimony based
upon these factors, we do not agree that Wife has demonstrated need commensurate with the initial
monthly amount of alimony she was awarded, and as we have noted, need and the other spouse’s
ability to pay are the two most important factors to be considered by the trial court in determining
the proper amount of alimony to be awarded.
In support of her request for alimony, Wife prepared and filed a cost of living report which
purports to set forth her personal expenses and expenses incurred in maintaining the marital
residence for the years 1999 through 2004, as well as a projected estimate of such expenses for the
future. While we do not disagree that most of the expenses itemized in Wife’s report of projected
expenses appear to accurately reflect legitimate needs and therefore, constitute a reasonable basis
for calculating the amount of alimony she should receive, some of the expenses listed by Wife are
excessive, vague, or otherwise inappropriate. As examples, we note Wife’s inclusion of $2,500 per
month for “Retirement Savings,” $1,250 per month for a savings fund she designated “Usage of
Emergency Fund,” $2,591 per month for “Home Maintenance Labor and Repairs” on the residence
(which she testified is in “sound” condition), and $1,188 per month for “Lawn and Yard
Maintenance.” Accordingly, we find that the trial court’s award of alimony at a beginning rate of
$15,000 per month was not warranted.
Second, we also do not agree that an award of rehabilitative alimony was appropriate under
the facts of this case. As the trial court remarked in its memorandum opinion of January 31, 2006,
Wife has not utilized her career skills in twenty years. It is reasonable to assume that whatever
experience she gained those many years ago would be of little or no advantage were she to seek
employment today, and it will take some time for Wife to receive the additional education and
training necessary to prepare her for a job offering meaningful remuneration. Further, at the time
of trial, Wife was fifty-five years of age, and we do not believe it is realistic to expect that she will
be able to effectively compete for employment as she nears an age at which many retire.
Based upon our findings that the initial award of alimony of $15,000 per month was not
adequately supported by the evidence, that rehabilitation of Wife is not feasible, and that Wife is
economically disadvantaged relative to Husband, we modify the trial court’s award of rehabilitative
alimony to an award of alimony in futuro in the amount of $ 9,000 per month. While this amount
does not differ from the average monthly amount of alimony awarded by the trial court over the sixty
months the court allowed for Wife’s rehabilitation, it provides that each payment is consistent with
Wife’s actual monthly needs.
V. Grounds
The final issue we address is whether the trial court abused its discretion in granting a divorce
to Wife based upon Husband’s adultery.
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Pursuant to T.C.A. § 36-4-129(b), a trial court is given the discretion to grant a divorce to
either or both of the parties as follows:
The court may, upon stipulation to or proof of any ground for divorce
pursuant to § 36-4-101, 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.
Husband argues that the trial court should have simply declared the parties divorced, as it was
authorized to do under this statute, and that the court abused its discretion by granting Wife a divorce
based upon Husband’s adultery. Husband contends that a divorce based upon his adultery was not
merited under the circumstances because the parties’ marriage had been failing since the 1980s, long
before he is alleged to have been unfaithful, and because Wife herself was sexually unfaithful to him
in 1990.
In Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001), the Tennessee Supreme Court stated
as follows regarding the abuse of discretion standard:
Under the abuse of discretion standard, a trial court’s ruling “will be
upheld so long as reasonable minds can disagree as to propriety of the
decision made.” State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000);
State v. Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000). A trial court
abuses its discretion only when it “applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning
that cause[s] an injustice to the party complaining.” State v. Shirley,
6 S.W.3d 243, 247 (Tenn. 1999). The abuse of discretion standard
does not permit the appellate court to substitute its judgment for that
of the trial court. Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927
(Tenn. 1998).
An abuse of discretion occurs when the lower court’s decision is without a basis in law or
fact and is, therefore, arbitrary, illogical, or unconscionable. State v. Brown & Williamson Tobacco
Corp., 18 S.W.3d 186, 191 (Tenn. 2000).
While the evidence in this case does not contradict Husband’s assertions that the parties’
marriage had been in jeopardy for several years and that Wife was sexually unfaithful to Husband
in 1990, neither of these facts persuades us that the trial court abused its discretion. Husband does
not contend, and we do not find, that the trial court applied an incorrect legal standard in reaching
its decision - T.C.A. § 36-4-121(3) provides that adultery by either party is a proper ground for
divorce, and Tennessee case law provides that adultery remains a ground for divorce even where
committed after separation. Perry v. Perry, 765 S.W.2d 776, 779 (Tenn. Ct. App. 1988). Nor do
we find that the trial court’s decision was against logic or reasoning. Husband testified that he had
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been dating another woman for two years prior to the divorce and that he and this woman had
engaged in sexual relations with one another since the fall of 2003. The fact that the parties’
marriage was deteriorating and the parties were separated does not nullify Husband’s infidelity,
which it might reasonably be argued, substantially decreased the probability of future reconciliation.
Further, we believe that the asserted infidelity of Wife some fifteen years before the divorce was too
remote in time to bear meaningful significance at the time of divorce and, applying the principle of
condonation, the trial court reasonably found it to be a relatively minor factor in the case. Also, we
have previously held that even where there is evidence that both parties engaged in inappropriate
marital conduct, a court may grant the divorce upon the fault of just one of the parties upon an
implicit finding that that party’s fault was greater. Morrissett v. Morrissett, No. W2003-01052-
COA-R3-CV, 2004 WL 1656479, at *6 (Tenn. Ct. App. M.S., filed July 23, 2004). Accordingly,
we do not agree that the trial court abused its discretion by granting Wife a divorce based upon
Husband’s adultery.
V. Conclusion
For the above stated reasons, we affirm the judgment of the trial court as modified, and this
case is remanded to the trial court for enforcement of that court’s judgment, as modified, and for the
collection of costs assessed below, all pursuant to applicable law. Costs of appeal are assessed to
the appellant, William James Jekot.
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SHARON G. LEE, JUDGE
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