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 June 20, 2000
KOCH , J. delivered the opinion for the court, in which CAIN , J. and COTTRELL , J. joined.
OPINION DENYING PETITION FOR REHEARING
Shirley Ann Earls has filed a petition pursuant to Tenn. R. App. P. 39 requesting this court
to reconsider portions of its May 31, 2000 opinion. Even though the petition raises issues that have
already been carefully considered by each member of the court, the nature of the case prompts us to
file this opinion elaborating on our initial opinion.1
Each member of the court has read the entire record on appeal and is fully aware of the
unfortunate and difficult circumstances in which Clark Earls and Shirley Earls find themselves. Our
original opinions reflect our best efforts to employ traditional legal principles to do justice between
these two persons in light of our understanding of the facts and the current governing law. Our
opinions also reflect our recognition of the practical limitations on both trial and appellate courts
when they undertake to sort out and rearrange the personal and financial relations of parties whose
marriage is irretrievably broken. Judges cannot rekindle love and affection once it has been
extinguished. Nor can they provide assets or income that the parties themselves do not have. Nor
can they restore to good health persons who bodies have been broken by unexpected catastrophic
injury. Judges must take the parties as they find them and must consider the facts of each case
objectively. They must also apply the applicable legal principles to these facts in a disciplined,
dispassionate way. The three opinions filed in this case on May 31, 2000 reflect that each member
of the court has discharged this obligation.
1
Prior to the filing of Ms. Earls’ petition for rehearing, each member of this court received
a lengthy letter from the trial court regarding the substantive issues raised by the parties and
addressed by the court in our May 31, 2000 opinions. The trial court’s letter was not considered by
this court and has not influenced our deliberations or decisions regarding the issues raised in Ms.
Earls’ petition for rehearing.
I.
THE PROPRIETY OF THE DIVORCE
Ms. Earls first asks us to reconsider the majority’s conclusion that the facts supported
entering an order in accordance with Tenn. Code Ann. § 36-4-129 (Supp. 1999) declaring the parties
divorced. This request stems from Ms. Earls’ belief that the majority has embraced the concept of
“no fault” divorce and that the record contains no evidence of a series of misconduct on her part that
provides Mr. Earls with grounds for divorce. Ms. Earls is mistaken on both counts.
The majority’s opinions do not depart from traditional legal principles to embrace the concept
of “no fault” divorce. Neither the majority opinion nor the concurring opinion can reasonably be
construed to hold that parties may be divorced without some proof or stipulation of one or more of
the statutory grounds for divorce or that trial courts must grant a divorce every time the parties
themselves have agreed that continued cohabitation is unacceptable. To the contrary, all three
opinions filed on May 31, 2000 rest on the following settled, well-recognized principles:
(1) that a divorce must rest on one of the statutory grounds for divorce, see Clothier v.
Clothier, 33 Tenn. App. 532, 538, 232 S.W.2d 363, 366 (1950);
(2) that trial courts should be afforded wide latitude to determine whether the parties in
a particular case should be divorced, see Marmino v. Marmino, 34 Tenn. App. 352,
355, 238 S.W.2d 105, 107 (1950);
(3) that appellate courts must review a trial court’s findings of fact in a divorce case
using the Tenn. R. App. P. 13(d) standard of review, see Hansel v. Hansel, 939
S.W.2d 110, 111 (Tenn. Ct. App. 1996); and
(4) that Tenn. R. App. P. 36(a) empowers appellate courts reviewing decisions in divorce
cases to grant the relief, consistent with the facts and the applicable law, to which the
parties are entitled. See Wade v. Wade, 897 S.W.2d 702, 715 (Tenn. Ct. App. 1994);
Mondelli v. Howard, 780 S.W.2d 769, 772-73 (Tenn. Ct. App. 1989).
As Judge Cottrell points out in her concurring opinion, this court’s differences revolve
around the issue of whether the record contains sufficient evidence of inappropriate marital conduct
by both parties to warrant declaring the parties divorced in accordance with Tenn. Code Ann. § 36-4-
129. Judges Koch and Cottrell have answered this question in the affirmative; while Judge Cain has
answered it in the negative. Accordingly, Judge Koch’s and Judge Cottrell’s opinions stand for only
two propositions – first, that the evidence preponderates against the trial court’s findings that the
record contains no evidence of inappropriate marital conduct by Ms. Earls and that Ms. Earls would
be “more aggressive in pursuing reconciliation” if Mr. Earls’ divorce petition was dismissed and
second, that these two persons should be declared divorced in accordance with Tenn. Code Ann. §
36-4-129 based on the facts of this case and the applicable state law. Judge Cain disagrees with the
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former proposition but would agree with the latter if he was convinced that the record contained
evidence of inappropriate marital conduct on Ms. Earls’ part.
Each member of the court has again reviewed the record and counsel’s representations during
oral argument in light of Ms. Earls’ insistence that the record contains no evidence of a series of
marital misconduct on her part that would warrant declaring the parties divorced. All judges adhere
to their original decisions. Judges Koch and Cottrell again conclude that the record contains
evidence of Ms. Earls’ behavior2 over a sustained period between March 1997 and July 1998 that
caused pain and anxiety to Mr. Earls and that rendered continued cohabitation unacceptable.3 For
his part, Judge Cain adheres to his conclusion that the record contains no evidence of fault on Ms.
Earls’ part. Accordingly, the majority’s conclusion remains that the record contains evidence of
inappropriate marital conduct by both Mr. and Ms. Earls and, therefore, that the trial court should
have declared them divorced in accordance with Tenn. Code Ann. § 36-4-129.
II.
SPOUSAL SUPPORT
Ms. Earls also takes issue with aspects of the decision regarding spousal support. She asserts
that the court did not give appropriate weight to her prospects for rehabilitation, her predicament
should her parents become unable to assist her, and the prospect that she will be required to obtain
additional public assistance in the future. Each of these possibilities – and many others – were
considered by the court during our original analysis of this case.
Our consideration of the support issue began with recognizing that the trial court’s judgment
would have rendered Mr. Earls financially unable to support himself.4 In the process of addressing
this problem, we took into consideration Ms. Earls’ current physical condition, the duration of the
marriage, the division of the marital assets and debts, and the other applicable factors contained in
Tenn. Code Ann. § 36-5-101(d) (Supp. 1999). We determined that the evidence does not support
2
This behavior does not include Ms. Earls’ injury or her rehabilitation efforts. Rather, the
behavior involves her treatment of and attitude toward Mr. Earls. As Judge Cottrell points out in her
concurring opinion, the record demonstrates that each party’s conduct has caused the other party pain
and distress and that neither party has any “intention, hope, or desire to live with the other or to re-
establish or maintain a marital relationship.”
3
There is likewise evidence that Mr. Earls engaged in conduct during the same period that
rendered continued cohabitation unacceptable to Ms. Earls.
4
That order required Mr. Earls to pay more money in spousal and child support and in
payment of Ms. Earls’ medical expenses than he earned. There can be little dispute that such an
award cannot stand. The combined effect of spousal and child support awards cannot leave the
obligor spouse unable to support himself or herself. See generally Anderton v. Anderton, 988
S.W.2d 675, 678-79 (Tenn. Ct. App. 1998).
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a conclusion that Ms. Earls will be capable of rehabilitating herself to the point where she could be
financially self-sufficient. Accordingly, we declined to characterize the spousal support we awarded
as “rehabilitative alimony.” Rather, we fixed a definite amount of future support to be paid in
monthly installments as authorized by Tenn. Code Ann. § 36-5-101(a)(2)(A).5 After considering the
factors in Tenn. Code Ann. § 36-5-101(d)(1), Judges Koch and Cottrell determined that Mr. Earls
should pay Ms. Earls $450 per month through March 31, 2006.6
In apparent recognition of the limits on Mr. Earls’ ability to pay support, Ms. Earls has not
taken issue with the amount of the monthly payments set in the May 31, 2000 opinion. However,
she insists that these payments should be left open-ended. We have again reviewed our disposition
of the spousal support question and have determined that based on the facts of this case and the
applicable statutory factors enumerated both the duration and the amount of the support award are
appropriate.
III.
THE CUSTODY OF THE CHILD
As a final matter, Ms. Earls takes issue with a portion of the May 31, 2000 opinion
establishing joint custody with Mr. Earls as the primary physical custodian. She concedes that she
and Mr. Earls had agreed to this arrangement prior to trial but insists that her agreement was
premised on her understanding that an improvement in her physical condition would be a change of
circumstance that could trigger a re-examination of the custody issue.
This court’s opinions regarding custody need to be understood for what they do and do not
do. All members of the court have agreed that the evidence does not indicate that a joint custody
arrangement would be inappropriate at the present time or that Mr. Earls is unfit to be the custodial
parent in a joint custody arrangement.7 In light of the parties’ agreement and the child’s interest in
continuity and stability, Judges Koch and Cottrell have determined that the child’s interests would
be served best by establishing this arrangement by court order without further proceedings. Judge
Cain would leave open an initial award of custody and remand to give Ms. Earls an opportunity to
request custody, which she has not previously done.
5
Tenn. Code Ann. § 36-5-101(d)(1) preserves the distinction between alimony in solido and
rehabilitative support by stating that “[r]ehabilitative support and maintenance is a separate class of
spousal support as distinguished from alimony in solido and periodic alimony.”
6
This amount includes payments of Ms. Earls’ continued insurance coverage. In addition,
Mr. Earls is still obligated to pay the accumulated unpaid medical expenses not covered by insurance
that were incurred prior to the divorce.
7
In this regard, all members of the court agree that the evidence preponderates against the trial
court’s conclusion that Mr. Earls is somehow “morally unfit” to be the child’s custodial parent
because of his relationship with Ms. Moore.
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There is no majority opinion regarding what Ms. Earls’ burden of proof might be should she,
at some future time, seek to change or modify the custody arrangement. Judge Koch, believing that
parties cannot by agreement vary the legal standards for determining whether changing custody is
in a child’s best interests, has determined that Ms. Earls’ burden of proof must be consistent with
the traditional “material change of circumstances” burden of proof routinely followed in change-of-
custody cases. Judge Cottrell has determined that the court need not address this issue in this
proceeding. Judge Cain avoids the issue entirely by remanding the case for an initial custody hearing
if Ms. Earls wants one.8 With the court in this posture, our May 31, 2000 opinions do not definitely
decide the burden-of-proof issue presently of concern to Ms. Earls. Thus, our May 31, 2000
opinions do not prevent Ms. Earls from seeking custody of the parties’ child at any time or for any
reason. Should she do so, she is free to present any argument to the court she wishes regarding her
burden of proof, including the legal effect, if any, of the parties’ original custody stipulation. The
trial court is likewise free to use appropriate legal principles to decide what Ms. Earls’ burden of
proof should be.
IV.
Based on our review of the record and our May 31, 2000 opinions in light of the points raised
in Ms. Earls’ petition for rehearing, all members of the court have determined that their original
opinions should stand without modification. Accordingly, Ms. Earls’ petition for rehearing is
respectfully denied. The costs of this petition for rehearing are taxed to Ms. Earls for which
execution, if necessary, may issue.
8
Judge Cain agrees that the ordered joint custody arrangement is proper if Ms. Earls does not
timely request a custody hearing.
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