Facts: The parties divorced after a 12-year marriage. Wife was 41 years old, healthy, and had worked as a homemaker throughout most of the marriage. At trial, Wife testified she investigated the possibility of pursuing additional education to improve her earning capacity but found it to be prohibitively expensive. After a trial, the trial court awarded Wife, inter alia, alimony in futuro of $225 per week. Husband appealed.

On Appeal: The Court of Appeals vacated the trial court’s judgment.

Husband argued that the trial court erred because the evidence showed Wife could be rehabilitated. Thus, Husband said rehabilitative or transitional alimony, rather than alimony in futuro, should have been awarded.

Tennessee Code Annotated § 36-5-121(d)(3) says alimony in futuro is appropriate where there is relative economic disadvantage and rehabilitation is not feasible. According to Tennessee Code Annotated § 36-5-121(f)(1):

Such alimony may be awarded when the court finds that there is relative economic disadvantage and that rehabilitation is not feasible, meaning that the disadvantaged spouse is unable to achieve . . . an earning capacity that will permit the spouse’s standard of living after the divorce to be reasonably comparable . . . to the post-divorce standard of living expected to be available to the other spouse . . . .

The trial court found “Wife is not capable of rehabilitation. Even with the award of periodic alimony, Wife will not be able to maintain the standard of living the parties enjoyed during the marriage or that Husband is enjoying post separation and post divorce.”

After reviewing the record, the Court ruled:

We have not been cited to any proof of physical or mental disabilities or other impediments to [Wife’s] rehabilitation. As noted in the quoted excerpt from her testimony, she wants to be rehabilitated but is unable to pay for schooling. The proof of Wife’s educational and employment history, age, and other statutory factors, along with her expressed desire to pursue additional education which would enhance her employment potential, preponderates against the trial court’s finding that Wife cannot be rehabilitated. . . .

While the evidence supports the finding that Wife has a need for alimony, it does not show that economic rehabilitation of Wife is not feasible; Wife has indicated a willingness to acquire additional education or training and, thereby, to increase her earning potential. Accordingly, we affirm the finding that Wife has a need for alimony and Husband has the ability to pay; we vacate the award of alimony in futuro and remand the case for a reconsideration of the nature, amount and duration of alimony to be awarded.

The trial court is directed to consider the amount and duration of rehabilitative alimony to permit Wife to accomplish her objectives. Our action in vacating the award of alimony in futuro does not preclude the court from considering the extent to which a concurrent award of alimony in futuro may be appropriate should the court find that Wife can only be partially rehabilitated.

K.O.’s Comment: Does this case stand for the proposition that a party’s mere willingness or desire to acquire additional education or training to increase his or her earning potential necessarily means partial rehabilitation is feasible?

Mays v. Mays (Tennessee Court of Appeals, Middle Section, April 23, 2012).

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