Posted by: koherston | April 25, 2011

Alimony Modification: Gill v. Gill

Facts: Husband, age 46,  and Wife, age 45, divorced after 29 years of marriage. At the time of divorce, Husband earned $60,000 per year from his employer of 23 years while Wife earned $5.90 per hour at Wal-Mart. After property division, the trial court awarded Wife alimony in futuro of $600 per month, finding Wife was economically disadvantaged, had no realistic prospect for rehabilitation, and Husband had the ability to pay support.

In 2009, Husband received a “buyout” offer from his long-time employer, i.e., a lump sum payment in exchange for his agreement to retire early. Husband accepted the buyout offer. The buyout amount was $96,000 gross, with a net of $64,903.82.

Husband filed a petition to terminate his alimony obligation. In the petition, Husband claimed he no longer had the same earning capacity he had at the time of the parties’ divorce. He also alleged Wife’s economic situation had improved.

Husband testified at length about his various health problems. Husband had seen several physicians, and was taking numerous medications. Because of his ailments, both mental and physical, Husband testified he did not seek employment after he retired, and he did not intend to do so. Husband submitted into evidence deposition testimony from his physician, who corroborated Husband’s testimony about his physical and mental impairments and opined Husband would “do better” without a full-time job.

The trial court found Husband’s early retirement constituted a substantial and material change in circumstances because it significantly reduced his ability to pay alimony. The trial court also found an improvement in Wife’s financial situation since the divorce. Weighing all the factors, the trial court found Wife still had a need for alimony, but Husband had a diminished ability to pay. The trial court modified Husband’s alimony in futuro obligation from $600 per month to $300 per month. Husband appealed, arguing his spousal support obligation should have been eliminated in its entirety.

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

To modify an alimony award, there must be a substantial and material change in circumstances. This change in circumstances must have occurred since the original award. A “substantial” change is one that “significantly affects either the obligor’s ability to pay or the obligee’s need for support.”  A change is “material” if it was not “anticipated or [within] the contemplation of the parties at the time” of the original divorce. Once a substantial and material change in circumstances has been established, the trial court is under no duty to modify the award; the party seeking modification must demonstrate that a modification is warranted. In assessing the appropriate amount of modification, if any, in the obligor’s support payments, the trial court should consider the factors contained in Tennessee Code Annotated § 36-5-121(i) to the extent they may be relevant.

Focusing on Husband’s ability to pay spousal support, the Court stated:

The record indicates that Husband’s decision to take the voluntary buyout from [his long-time employer] and retire was a reasonable decision. Husband testified that his job . . . was physically demanding, and his testimony about his physical and mental condition was undisputed. We note that the testimony of Husband’s physician was supportive of his decision to retire . . . , but that the physician stopped short of testifying that Husband, age fifty-five at the time of the hearing below, was unable to work in any type of gainful employment.

The Court then noted Husband’s post-divorce assets are far more valuable than Wife’s.

From our review of the entire record, we find that the trial court carefully considered the parties’ circumstances and the statutory factors, and its decision to reduce Husband’s alimony obligation from $600 a month to $300 a month was well within the range of reasonableness. We decline to find that the trial court abused its discretion, and thus affirm its decision.

Gill v. Gill (Tennessee Court of Appeals, Western Section, March 24, 2011).

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


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