Posted by: K.O. Herston | April 11, 2013

Refusal to Terminate Alimony Reversed in Winchester Divorce: Finchum v. Finchum

knoxville alimony lawyersFacts: The parties were divorced after 10 years of marriage. The trial court approved the parties’ Marital Dissolution Agreement (“MDA”) providing that Husband would pay Wife rehabilitative alimony for a period of 30 months in the amount of $1000 per month. The MDA stated that the alimony payments would terminate upon Wife’s death.

The trial court later approved an Amended MDA in which Husband agreed to extend the period he would pay Wife rehabilitative alimony from 30 to 36 months. The Amended MDA stated, as did the initial MDA, that the alimony payments would terminate upon Wife’s death.

About a year later, Husband filed a Petition to Modify in which he sought to terminate his alimony payments based on Wife’s remarriage. Wife filed a counter-petition in which she alleged Husband was in contempt of court for unilaterally terminating his alimony payments. Wife also argued the alimony ordered was alimony in solido and, therefore, not subject to modification.

The trial court ruled the alimony provisions contained in the marital dissolution agreement are contractual in nature between the parties and are not subject to modification. Husband was ordered to pay all past-due alimony, and Wife was awarded a judgment for her attorney’s fees.

Husband appealed.

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

Tennessee law provides that trial courts may award four different types of alimony in divorce cases: rehabilitative, in futuro, transitional, and in solido. The MDAs the trial court approved in this case expressly provided for Husband to pay rehabilitative alimony. Rehabilitative alimony is defined as follows in Tennessee Code Annotated § 36–5–121(e)(1):

Rehabilitative alimony is a separate class of spousal support, as distinguished from alimony in solido, alimony in futuro, and transitional 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 the other spouse, considering the relevant statutory factors and the equities between the parties.

As the statute provides, rehabilitative alimony is modifiable by the court at any time:

An award of rehabilitative alimony shall remain in the court’s control for the duration of such award, and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of a substantial and material change in circumstances….

After reviewing the record, the Court concluded:

Tennessee Code Annotated § 36–5–121(e)(2) is unequivocally clear that “[a]n award of rehabilitative alimony shall remain in the court’s control for the duration of such award, and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of substantial and material change in circumstances.” The fact that Husband agreed to pay Wife rehabilitative alimony as part of an MDA does not mean the alimony cannot be modified or terminated, because the trial court adopted the Amended MDA as part of its Order and maintains control over the alimony as provided in the statute….

The parties did not specify, as Wife suggests, that the rehabilitative alimony was modifiable only upon the death of Wife. As Husband notes in his brief, establishing rehabilitative alimony for a definite period of time does not transform the award into a different type of alimony or make it unable to be modified by the trial court. To the contrary, rehabilitative alimony is granted for a specific duration….

We hold the trial court erred in ruling that the alimony payments could not be modified. Accordingly, we remand this case to the trial court to determine whether Husband can prove a substantial and material change in circumstances sufficient to warrant a modification or termination of his rehabilitative alimony as of the date of his petition….

The Court also remanded the award of attorney’s fees to Wife with instructions to award only those fees attributable to the contempt petition.

Finchum v. Finchum (Tennessee Court of Appeals, Middle Section, February 13, 2013).

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


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