Facts: The parties married in 2002 and had no children. In 2009, Wife fell down the stairs at home, struck her head, and sustained a traumatic brain injury. As a result, Wife has difficulty reading, writing, and completing tasks, and suffers debilitating migraine headaches and seizures.

Husband, a soldier, was deployed overseas in 2010. After three months by herself (where she had difficulty caring for herself), Wife moved to Florida to live with her parents.

Husband emailed Wife suggesting they separate. Wife filed a petition for legal separation so she could prolong her benefits under Husband’s health insurance. Husband counter-sued for divorce on grounds of inappropriate marital conduct.

Husband alleged Wife committed inappropriate marital conduct through her “reckless money management,” “extreme jealousy,” and alienation of Husband from his other family members. On these latter points, Husband testified that Wife caused him to become alienated from his daughter, ex-wife and other family members. Husband testified that he had not been able to see his nephews and nieces for years, that he had not been able to have a visit with his daughter since 2005, and that his Wife became jealous when he scheduled to have lunch with his daughter in 2007. Husband testified that Wife was often jealous. Wife did not refute Husband’s testimony in this regard.

The trial court dismissed Husband’s counterclaim for divorce after finding he did not prove inappropriate marital conduct by Wife. The trial court granted Wife a legal separation for two years. Husband appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Tennessee Code Annotated § 36-4-101(a)(11) defines inappropriate marital conduct as:

The husband or wife is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper, which may also be referred to in pleadings as inappropriate marital conduct[.]

Inappropriate marital conduct can be found when either spouse “is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper.” Thus, inappropriate marital conduct is established when either or both of the parties have engaged in a course of conduct which (1) caused pain, anguish or distress to the other party, and (2) rendered continued cohabitation improper, unendurable, intolerable or unacceptable.

Husband argued that he established grounds for divorce such that it was error to dismiss his counter-petition. The Court disagreed, stating:

Although the trial court did not make specific findings of fact, the evidence cited by Husband does not preponderate against the determination that Wife was not guilty of inappropriate marital conduct. . . . The record supports the trial court’s determination that Wife did not engage in a course of conduct that caused pain and anguish to Husband or which made continued cohabitation unacceptable. Thus, we affirm the trial court’s dismissal of Husband’s counterclaim for absolute divorce.

Husband then argued the trial court erred by granting a legal separation to Wife when there was no hope of reconciliation. After noting the discretionary nature of such a decision and the deferential standard of review, the Court said, “[W]e cannot conclude that the [trial] court abused its discretion in granting a legal separation and not a divorce.”

Thus, the trial court was affirmed.

Judge Clement filed a concurring opinion to note his opinion that a spouse is not afforded a right to divorce without proving one of the statutory grounds for divorce. Until then, according to Judge Clement, Husband is not entitled to complain on appeal that the trial court abused its discretion by granting Wife a legal separation for two years, regardless of whether reunification was possible or probable.

Judge Cottrell filed a dissenting opinion stating:

In this case, [Husband] established that his wife interfered with his relationship with his daughter and the rest of his family, testimony that went unrebutted. In my opinion, that evidence, together with the mutual desire to separate, establish grounds for divorce.

K.O.’s Comment: I agree with Judge Cottrell. “Inappropriate marital conduct” is a term of art broadly defined and (I think) liberally interpreted. For example, compare this case to the similar factual scenario presented in Earls v. Earls. I think the reasoning used by the majority in this case is inconsistent with that employed by the Court in Earls regarding how liberally “inappropriate marital conduct” is to be interpreted. Applying that liberal interpretation to the unrebutted evidence cited by Judge Cottrell has me siding squarely with the dissent on this one.

Longanacre v. Longanacre (Tennessee Court of Appeals, Middle Section, January 16, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.