Nicholson v. Nicholson

Facts: The parties were married for 13 years and had three children. Husband is a dentist earning $144,000/year and Wife was a homemaker who earned approximately $12,000-16,000 working in Husband’s dental practice. Evidence at trial revealed Wife’s extramarital affairs, “party girl” lifestyle, and virtual abandonment of the family. After a trial, the trial court denied Wife’s claim for spousal support. Without reciting any of the statutory factors it considered in denying alimony, the trial court ruled:

With regards to alimony, [Wife] lived way beyond her means by obtaining large chunks of money from other men as well as using another man’s credit card. [Wife], rather than finding employment lived as a party girl and the Court uses that term charitably because it believes it is much worse than just party girl. Therefore, the Court is hereby dismissing [Wife’s] claim for alimony.

Wife appealed.

The Court of Appeals vacated the trial court’s ruling and remanded it for further hearing.

In this case, Wife has no college degree and has limited work experience outside of Husband’s dental practice. While Wife recently acquired her real estate license and a job, as of the time of the hearing she had yet to earn any significant income from commissions. On the other hand, Husband is a cosmetic dentist who earned over $140,000 each of the last two years. Based on the record, there appears to be a significant disparity between the parties’ current and potential incomes.

The court’s decision not to award alimony is not an impermissible result; however, we are unable to discern from the record the court’s analysis of the statutory factors, particularly the paramount considerations of the disadvantaged spouse’s need and the obligor spouse’s ability to pay. Furthermore, because we remand for a specific determination and allocation of approximately $40,000 in debt, the trial court should consider its effect on the respective spouse’s need and ability to pay. Consequently, we vacate the trial court’s decision to deny alimony and remand for an analysis of the factors set forth in Tenn. Code Ann. § 36-5-121(i).

Considering the glaring disparity in earning capacity, I think the trial court will be hard pressed to deny alimony to Wife on remand.  As the appellate court noted:

Fault is an essential consideration in determining whether to award alimony. However, fault is not the only relevant factor warranting consideration. Particularly, a trial court should carefully consider the two most important factors, the disadvantaged spouse’s need and the obligor spouse’s ability to pay. These two factors cannot be overlooked. Furthermore, fault must not be applied punitively against a guilty party.

Nicholson v. Nicholson (Tennessee Court of Appeals, Oct. 15, 2010).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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