Facts: Parties were married for 23 years and had two children. During the marriage, Wife was a homemaker while Husband owned a successful business. The trial court found the parties enjoyed a “lavish lifestyle” during the marriage. The trial court found Wife was entitled to long-term alimony because of her prolonged absence from the workforce. Because the earnings of Husband’s business were “erratic,” Wife was awarded two commercial buildings, the debt on which was to be satisfied by Husband by 2017. In addition, Husband was ordered to pay Wife $6000/month for four years, $5000/month for the next four years, and $4000/month for the next four years. Once the debt on the commercial buildings was paid, Wife would receive the income generated by those properties. Several years after the divorce, Wife filed a petition to increase her alimony award and Husband’s child support obligation. Evidence showed a wide disparity in the parties’ post-divorce standard of living, with Husband enjoying a significantly higher standard of living after his business “stabilized.” The trial court found the previous alimony award was sufficient for Wife’s needs and refused to modify it. The trial court increased Husband’s child support obligation but refused to impose an upward deviation from the Guidelines. Finally, the trial court refused to award Wife her attorney’s fees. Wife appealed.
In a detailed opinion that should be required reading for all matrimonial lawyers, the Court of Appeals reversed. Let’s take the issues in turn.
The first question presented was whether an increase in the obligor’s income, standing alone, created a substantial change of circumstances justifying modification. The Court noted a “substantial” change is one that “significantly affects either the obligor’s ability to pay or the obligee’s need for support.”
Husband’s lifestyle indicates that he has no trouble paying for luxuries in addition to meeting his obligations, such as re-purchasing and renovating the parties’ spacious marital home, buying a new vehicle for the parties’ daughter, and paying for items such as regular vacation trips and a $23,000 fur coat for his new wife. By any measure, the consistent improved performance of Wiser Company has significantly affected Husband’s ability to pay, and thus constitutes a “substantial” change in circumstances.
The Court then noted that the parties’ relative earning capacities, while one of several statutory factors to be considered, “is of particular importance when one spouse has spent much of the marriage as a homemaker and stay-at-home parent . . . .” The Court concluded “the parties’ standard of living during the marriage and the post-divorce standard of living for the other spouse, while certainly not the only consideration, were adopted by the Legislature as the basic ‘measuring sticks’ in alimony decisions with respect to an economically disadvantaged spouse.”
In the case at bar, at the time of the divorce, Husband was not able to afford alimony that would permit Wife to have a standard of living comparable to the parties’ standard during their marriage. The circumstances have clearly changed. Tennessee’s General Assembly has stated as a policy matter that our courts, in setting spousal support, should set the support at a level that allows the economically disadvantaged spouse a standard of living that is “reasonably comparable to the standard of living enjoyed during the marriage or to the post-divorce standard of living . . . available to the other spouse,” considering the statutory factors and the equities between the parties. This applies to modification proceedings as well as the initial divorce proceedings. Now that Husband can better afford to pay alimony that provides Wife a standard of living that more closely approximates the standard during the parties’ marriage, considering the statutory factors and the equities between the parties, he should be required to do so.
The Court of Appeals modified Wife’s alimony award to $10,000/month retroactive to the date she filed her Petition for modification.
Child Support Upward Deviation
The Court of Appeals summarized the applicable law as follows:
An important goal of the Child Support Guidelines is to”[e]nsure that, when parents live separately, the economic impact on the child is minimized, and, to the extent that either parent enjoys a higher standard of living, the child shares in that higher standard.” In making a child support determination, the trial court “shall apply, as a rebuttable presumption, the child support guidelines.” In its discretion, the trial court may deviate from the Guidelines if “the application of the child support guidelines would be unjust or inappropriate in [the] particular case, in order to provide for the best interest of the child or children, or the equity between the parties.” If, however, the obligor’s net income exceeds $10,000 per month, the standard is different. At this income level, to obtain a deviation from the Guideline amount, the obligee “must prove, by a preponderance of the evidence, that child support in excess of the amount provided for in the child support guidelines is reasonably necessary to provide for the needs of the minor child or children of the parties.”
The evidence showed very different circumstances for the children in their parents’ homes.
Husband is apparently unperturbed by the fact that his children split their time in sharply contrasting environments, one modest and middle-class, the other privileged and wealthy. In this situation, the children share in Husband’s “higher standard of living” only when they reside with him. This is not consonant with the goal of the Guidelines, to minimize the economic impact on the children of having parents living separately, and ensure that the children fully share the standard of living enjoyed by the parent with the most financial resources.
With that said, the Court held the trial court did not abuse its discretion in declining to award an upward deviation in light of the increased alimony award as modified by the Court of Appeals.
Tennessee Code Annotated § 36-5-103(c) authorizes a trial court to award attorney fees incurred to increase child support. Tennessee Code Annotated § 36-5-101 authorizes an award of attorney fees incurred to increase alimony.
In this case, Wife’s petition to increase alimony was denied. However, Wife’s request to increase child support, at least up to the maximum Guideline amount, was granted.
At trial, Husband took the position that, with an average income of over $50,000 per month, his child support for two children should remain at $1498 per month. In support of this position, Husband argued that he paid for the children’s medical insurance and dental expenses, and gave generous gifts, such as the car to the sixteen-year-old daughter. This argument can only be described as chutzpah.
“In cases involving the . . . support of children, . . . it has long been the rule in this State that counsel fees incurred on behalf of minors may be recovered when shown to be reasonable and appropriate.” Deas v. Deas, 774 S.W.2d 167, 169 (Tenn. 1989). The Deas Court stated: “There is no absolute right to such fees, but their award in . . . [child] support proceedings is familiar and almost commonplace.” This Court has explained “that the award of fees is for the benefit of the child and is a necessary part of, or inseparable from, the child’s right to support.” “[F]ee awards in child support cases . . . protect the child’s, not the parent’s, interests and remedies” The Deas Court expounded on the policy reasons for the fee awards:
[C]hildren are entitled to their reasonable counsel fees incurred in their behalf, otherwise they would be helpless to enforce their right of support and maintenance against a reluctant father. . . . There is a sound public policy which places in easy reach of the minor children the machinery of the law to compel their rights by suit against an unwilling father. The right to have him pay reasonable counsel fees is inseparable from this right. Deas, 774 S.W.2d at 169 (quoting Graham v. Graham, 204 S.W. 987, 989 (Tenn. 1918)).
After the Court described Husband’s argument as “chutzpah,” it should come as no surprise that the Court awarded Wife her attorney’s fees incurred in both her successful modification of child support and her (now successful) modification of the alimony award.
As stated above, this is an important opinion that should be read by every Tennessee divorce attorney.
Information provided by K.O. Herston, Tennessee Divorce Lawyer.