Periodic Alimony: Fox v. Fox

Facts: Husband and Wife married in 1991, separated in 2006, and divorced in 2009.

At the time of trial, Husband was 65. He is self-employed as a home inspector and earned profits of $47,312 in 2006, $71,557 in 2007, and $24,034 in 2008. Husband also received the following distributions from a family trust: $190,998 in 2006, $212,792 in 2007, and $182,464 in 2008. Husband testified that income distributions do not reduce the principal of the trust, and he does not anticipate the trust will be depleted anytime in the foreseeable future.

Wife was 55 at the time of trial. She is a college graduate and was employed as a realtor during much of the parties’ marriage. In 1996, the parties purchased a bed and breakfast. Wife began working there part-time in 1998, moving to full-time in 2004, at which time she surrendered her real estate license. The bed and breakfast was never profitable and both parties acknowledged its income alone could not support an individual without an outside job.

Wife’s doctor testified that Wife suffered from diabetic neuropathy, an incurable, chronic condition in diabetic patients consisting of damage to the peripheral nerves. As a result, the doctor testified Wife has a permanent partial disability secondary to chronic pain and the inability to stand for any length of time.

Considering the foregoing, the trial court awarded Wife periodic alimony (also called alimony in futuro) of $1000 per month until her death or remarriage, commenting as follows:

The issue before the Court is looking at all of the factors. Is there a need, based upon where we are? Yes, there is a need. . . . [Wife] is an extremely bright, well-educated, capable individual, of an age, that, in our society, . . . [e]ven with diabetic issues, I think that there is the potential for her to earn income for a greater period of time than [10 years]. . . . Does he out earn her, most especially in light of the Fox Trust? Given her age and her abilities, can she be rehabilitated to earn as much as him, not as much? Will it bear anywhere near what the request is for the purposes of going forward? No, it won’t. The periodic alimony that relates to where they are is . . . $1,000 a month . . . , which takes into account her abilities to earn her own and to be able to use the business in a way that it is going to be the most productive.

Wife appealed, arguing the trial court abused its discretion and should have awarded more alimony.

On Appeal: The Court of Appeals agreed with Wife and reversed the trial court.

Decisions regarding the nature and amount of spousal support hinge upon the unique facts of each case and require careful consideration of the factors found at Tennessee Code Annotated § 36-5-121(i). The single most important consideration for the court in awarding alimony is the need of the disadvantaged spouse seeking support, followed by the ability of the obligor spouse to pay support. An award of alimony in futuro is appropriate where there is “relative economic disadvantage” and rehabilitation of the disadvantaged spouse is not feasible. Pursuant to Tennessee Code Annotated § 36-5-121(f)(2)(A), “[a]n award of alimony in futuro shall remain in the court’s control for the duration of such award, and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of substantial and material change in circumstances.” In addition, Tennessee Code Annotated § 36-5-121(f)(3) provides that an award of alimony in futuro “shall terminate automatically and unconditionally upon the death or remarriage of the recipient.”

Analyzing the evidentiary record, the Court concluded:

Our review of the record suggests that the trial court’s award of periodic alimony is not supported by the evidence. First, we note the relatively long duration of the marriage—nearly 18 years by the time of the trial in 2009. Additionally, Husband’s financial resources, from his home inspection business and his family trust, are significantly greater than Wife’s. Wife gave up selling real estate in 2002 and retired her license in 2004 in order to work the bed and breakfast full-time. The outstanding debt on the bed and breakfast, which was awarded to Wife, is approximately $82,000. Wife’s monthly payment [on that debt] is $1,028.97. Finally, while the trial court found Wife to be bright, well-educated, and capable, Wife has some physical problems that may impact her ability to work in the future. Taking into account all of the relevant factors, particularly Wife’s need and Husband’s ability to pay, we conclude that Wife’s periodic alimony should be increased to $3,000 per month.

Fox v. Fox (Tennessee Court of Appeals, Middle Section, March 24, 2011).

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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