Facts: The parties divorced after a 22-year marriage.  The parties divided the marital estate by agreement.  The issue for the trial court was alimony.  The trial court found Wife demonstrated her need for spousal support but failed to prove Husband’s ability to pay and, therefore, denied Wife’s claim for alimony.  After a post-trial hearing where Wife alleged Husband had not been truthful about his income, the trial court modified its prior ruling and awarded Wife transitional alimony of $150/month for 24 months.  Wife appealed.

The Court of Appeals reversed the trial court and slightly increased the alimony award.

In the present case, Wife has acquired the skills needed to become self-sufficient and thus does not require rehabilitation. But because she has not yet made the full transition to self-sufficiency, the trial court correctly found that she was entitled to transitional alimony, another form of temporary support which is awarded “when the court finds that rehabilitation is not necessary, but the economically disadvantaged spouse needs assistance to adjust to the economic consequences of a divorce, legal separation or other proceeding where spousal support may be awarded.”

Wife was still earning a modest income at the time of the final hearing in this case, but had not yet made the transition to employment in the field she had trained for. Her income and expense statement recited $725 per month in medical expenses, which together with other household expenses greatly exceeded her monthly income. She also testified to $25,000 in student loans which will have to be repaid. Thus, she clearly needed temporary financial assistance to adjust to the economic consequences of this divorce. . . .

Husband’s payment of the mortgage and other obligations during the parties’ separation was also a legitimate factor for the court to consider, amounting as it did to a contribution to the marriage over and above Husband’s other contributions prior to the separation. Of course, Husband’s payment of the mortgage and other joint obligations during separation inured to his benefit as well as to Wife’s. Additionally, other factors that the court did not address suggest that a somewhat greater alimony award would have been appropriate. These factors include the relative earning capacity of the parties, the twenty-two year duration of the marriage, Wife’s physical condition, which has resulted in greater medical expenses for her and thus greater need, and the disappointing results of the sale of the marital residence, which has left both parties with much less in the way of liquid assets from the division of marital assets.

In light of these factors, it is apparent that $150 a month will not do very much to address Wife’s needs. Further, with his greater earning capacity and current income of over $5,500 per month, Husband clearly has the ability to give her much more support than the court ordered. Thus, we believe that the court erred in not considering those factors and in limiting alimony as it did. We are mindful, however, that Husband depends upon a great deal of overtime work to achieve his current level of income. Thus, although we believe Wife should receive more alimony than was ordered, we do not believe the award should be so large as to compel Husband to work an inordinate number of hours in order to pay it.

Based on the foregoing, the Court increased the trial court’s award from $150/month for 24 months to $350/month for 24 months.

Wife also argued the trial court erred in failing to award her attorney’s fees as alimony.  In additional to considering the normal statutory factors, the Court noted “[f]ault seems especially relevant in cases where the cause of the divorce, and thus the need for the attorney fees, arises from the conduct of one of the parties.”  Noting the divorce was granted to Husband on the grounds of Wife’s inappropriate marital conduct and the fact that the marital estate was divided equally, the Court ruled the trial court did not abuse its discretion in failing to award Wife her attorney’s fees.

Sheppard v. Sheppard (Tennessee Court of Appeals, Sept. 27, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.