Posted by: koherston | November 18, 2010

Killian v. Killian

Facts: Parties divorced after 31 year marriage.  Wife received alimony of $5000/month for the first year, $4500/month for the second year, and $4000/month thereafter.  Husband filed a petition to modify the alimony award, citing the decreased income from his law practice and his diagnosis of Parkinson’s disease.  After a trial, the trial court held Husband failed to prove a substantial and material change of circumstances justifying a modification of alimony.  Wife was awarded $16,000 in attorney’s fees.  Husband appealed.

The Court of Appeals affirmed the trial court.

On the subject of Husband’s medical diagnosis, the Court stated:

We agree with Husband that his diagnosis with Parkinson’s disease is material in that it occurred after the entry of the divorce decree and was not anticipated by the parties. To be substantial, a change must significantly affect “the obligor’s ability to pay or the obligee’s need for support.” Husband argues that Parkinson’s disease “adversely affects his ability to earn a living.” The evidence of record does not, however, support that assertion. It is significant that Husband was not diagnosed with Parkinson’s disease until January 2009. The hearing in this case occurred in November 2009, and Husband testified that his earnings from his law practice had been only $65,000 through September 2009. Husband relies on this testimony regarding his income from one source and for only part of the year. There was no proof as to Husband’s income from other sources, including investments, from which he had received substantial income in previous years. It is also relevant that, at the time of the hearing, Husband had applied for the position of United States Attorney and testified that he thought he could perform that job. The evidence does not preponderate against the trial court’s finding that the evidence did not show “a significant and substantial impact on Petitioner’s overall income.”

Without getting into all the detail, suffice it to say the Court discounted Husband’s claims of decreased income.

In his brief, Husband asserts, without explanation, that his average yearly income since 2005 was $122,000. Since Husband criticizes the trial court for failing to consider his reduced earnings from 2009, we surmise that he used the income figure of $65,000, the amount of net earnings from his law practice through September 2009, for 2009. As previously discussed, Husband did not put on any proof regarding other income from 2009. We find no error in the trial court’s decision to consider only those years for which there was complete income information.

The evidence does not preponderate against the trial court’s finding that there had “not been a significant decrease in [Husband’s] overall income.”

This might shed a little light on the Court’s thinking, too:

Furthermore, Husband’s assertions regarding his need to incur debt to pay alimony are not convincing, particularly in light of his lifestyle. The record contains evidence that, in 2008, Husband made substantial political contributions (over $5,000) and gifts to a fraternity ($4,000), took several expensive vacations, dined at numerous expensive restaurants (at least $4,800), and bought a new car.

Everything worked out for Husband in the end.  He was appointed by President Obama, confirmed by the U.S. Senate, and is presently serving as the U.S. Attorney for the Eastern District of Tennessee.

Killian v. Killian (Tennessee Court of Appeals, Oct. 5, 2010).

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


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