Temporary Alimony Modified, Permanent Alimony and Attorney’s Fees Affirmed: Wilkinson v. Wilkinson

Facts: Husband and Wife were divorced after 29 years of marriage. During the marriage, Husband was a well-paid business executive. Wife was a stay-at-home mother to the parties two children, both of whom were adults at the time of divorce. Wife expressed her desire to work several times during the marriage, but Husband always opposed it. Husband, the sole source of financial support to the parties, unexpectedly moved out of the marital residence. The following month, Wife, age 59, was diagnosed with breast cancer, underwent surgery, and began a five-year course of treatment. For her financial support during the separation, Wife’s brother loaned her $75,000 over the course of the next two years. Husband lost his job after the separation, and his earnings dropped dramatically. While the case was pending, Husband was ordered to pay Wife temporary alimony of $5400 per month. Husband moved to modify or suspend the temporary alimony obligation. The trial court deferred ruling on that motion until trial, at which point the motion was denied. The trial court granted the divorce to Wife on the grounds of Husband’s adultery. After equitably dividing the marital property, Husband was ordered to pay Wife permanent alimony of $800 per month. The trial court found Husband’s potential earning capacity to be much greater so Husband was ordered to file an affidavit of all his income every 90 days. Husband was ordered to pay Wife $66,800 in arrearages for unpaid temporary alimony. Husband was ordered to pay Wife’s $75,000 debt to her brother as alimony in solido as well as $31,000 of Wife’s attorney’s fees.

On Appeal: The Court of Appeals reversed, modified and affirmed the trial court’s ruling. Trifecta!

Husband first challenged the trial court’s division of marital property. The trial court is tasked with dividing the parties’ marital estate in a just and equitable manner. The division of property is not rendered inequitable simply because it is not mathematically equal, or because each party did not receive a share of every item of marital property. In the final analysis, the justness of a particular division of the marital property and allocation of marital debt depends on its final results.

The Court found the division of marital property to be “generally equitable.” As part of the division, Husband was ordered to pay Wife’s $75,000 debt to her brother but the trial court confusingly called it “alimony in solido.” The trial court also ordered Husband to pay $66,800 in arrearages stemming from his failure to pay temporary support as ordered. The Court held:

Whether the allocation of this $75,000 debt is part of the property division or is alimony in solido, we hold that this outcome results in an unwarranted double payment by Husband for Wife’s support while this divorce matter was pending. . . . Whether classified as part of the property division or as alimony in solido, the Trial Court erred in assigning this $75,000 debt to Husband. We modify the Trial Court’s judgment to hold that Wife is responsible for the $75,000 debt to her brother as this borrowed $75,000 was used by Wife, in addition to Wife’s alimony pendente lite, to maintain her standard of living at a level far beyond the income and assets then available to the parties.

The Court also reversed the trial court’s denial of Husband’s motion to modify or suspend his obligation to pay temporary alimony of $5400 per month. After a trial, Husband was ordered to pay Wife $800 per month in permanent alimony. The Court also reversed

We find this gross disparity in Husband’s alimony payment obligations pre-divorce and post-divorce unwarranted in terms of Husband’s ability to pay from the time he filed his Motion to Reduce, Suspend, or Eliminate [Temporary] Support up through the time the Trial Court entered its final decree of divorce. Notwithstanding Husband’s past successful years of employment, during the relevant period of time during which Husband was ordered to pay pendente lite support, the record simply does not support a finding that Husband realistically had the ability to pay Wife $5,400 per month.

Husband’s ability to pay alimony was not substantially greater for the period from [the date Husband filed his Motion] until the entry of the Trial Court’s final judgment than it was at the date of the final judgment. We believe the appropriate amount of pendente lite support due is best set at the same amount the Trial Court ultimately set for Husband to pay as alimony in futuro, $800 per month. For this reason, we believe the Trial Court erred in not granting Husband’s Motion and should have modified his pendente lite support award to $800 per month.

Husband then challenged the award of permanent alimony. Trial courts have broad discretion to determine whether alimony is needed and, if so, the nature, amount, and duration of support. There are no hard and fast rules for spousal support decisions. Decisions regarding alimony typically hinge on the unique facts and circumstances of the case. While all of the statutory factors of Tennessee Code Annotated § 36-5-121(i) are significant, the two most important factors are the obligor spouse’s ability to pay and the need of the economically disadvantaged spouse.

The Court affirmed the trial court, finding:

The record clearly establishes that Wife is economically disadvantaged compared to Husband. The evidence shows that Wife relied on Husband for support over the course of the marriage. Wife’s job prospects are negligible given her state of health and lack of experience. From the record, it is apparent to us that neither Husband nor Wife likely will be able to replicate any time soon the standard of living enjoyed during much of their marriage. As we have discussed, Wife’s minimal work history and her past financial reliance on Husband, largely at Husband’s insistence during most of the marriage, essentially precludes her from independently attaining either the parties’ prior marital or Husband’s post divorce standard of living. While the record suggests that Husband may well regain some measure of his past financial success, he was searching unsuccessfully for employment at trial’s end. Nevertheless, the amount of $800 per month in alimony to be paid by Husband is reasonable in light of all of the circumstances. The Trial Court did not abuse its discretion in awarding Wife alimony in futuro in this amount.

Finally, Husband challenged the award of Wife’s attorney’s fees. An award of alimony in solido for payment of attorney’s fees should be based on the factors set forth in Tennessee Code Annotated § 36-5-121(i), and is appropriate when the spouse seeking attorney’s fees does not have adequate funds to pay his or her legal expenses. Conversely, a spouse with sufficient property or income to pay his or her attorney’s fees is not entitled to be compensated.

The Court affirmed the trial court’s award, noting:

Several factors weigh in favor of the Trial Court’s decision to award Wife attorney’s fees. Though neither party is in a state of financial strength, Wife’s poor employment prospects, long absence from full-time employment, and extended bout with cancer and other health issues support awarding her attorney’s fees.

Wilkinson v. Wilkinson (Tennessee Court of Appeals, Eastern Section, November 29, 2011).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.

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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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