Facts: The parties divorced after over 30 years of marriage (and a 43-year relationship). During the marriage, they adopted their grandchild, who was a minor at the time of divorce. After their separation, Husband liquidated various marital assets and transferred them to accounts controlled solely by him. After he was found in contempt, Husband fled the country to avoid the risk of incarceration. Husband failed to appear for the trial, after which the trial court made Wife the primary residential parent of their adopted grandchild, awarded Husband no parenting time whatsoever, established Husband’s child support obligation, equally divided the marital property, and awarded Wife alimony in futuro of $5000 per month. In denying Husband any parenting time, the trial court stated:
[U]ntil such time as [Husband] has reappeared and shown evidence of his parenting skills . . . and especially dispelled the risk that he would remove Child from the jurisdiction of this court in a manner that he has removed himself, he shall have no parenting time with Child. . . .
On Appeal: The Court of Appeals reversed the trial court.
Parenting Time. Husband admitted he fled the trial court’s jurisdiction to avoid being jailed for contempt but insisted he had not willfully abandoned the Child. He argued the “only possible legitimate reason” to restrict his visitation in the present case is the fear he may abscond with Child. Citing public policy grounds that favor visitation between non-custodial parents and children, however, Husband basically argued that his conduct did not justify prohibiting all contact with Child.
Although a court has the power to punish a party for contempt, the violation of a court order, standing alone, is not sufficient to order all contact with the child be suspended. There must be proof that the parent’s conduct endangered the child’s welfare, physically or emotionally, to the point where the presumption against denying the parent’s visitation rights is overcome. The court must balance the right of the parent to visitation with the best interest of the child, as well as consider less restrictive alternatives. With this in mind, the Court stated:
The trial court certainly has discretion to compel obedience to its orders by directing Husband to return the marital funds he took and put to his own use. At the same time, we remain mindful that “[c]ustody and visitation decisions are not intended to reward or punish parents, and visitation should not be granted or withheld for punitive purposes.” Based on the foregoing, we cannot sanction banning all contact between Husband and the Child as punishment for Husband’s contemptuous behavior. Accordingly, we remand this matter to the trial court for the establishment of telephonic and such supervised visitation and/or other permissible face-to-face contact by Husband with the Child as determined to be appropriate in the court’s discretion.
Alimony In Futuro. The trial court found:
An award of rehabilitative alimony would not place [Wife] anywhere near an equal footing with [Husband] nor would [Wife] be able to continue living in the manner in which she had become accustomed . . . during this thirty year marriage. An award of alimony in futuro will further assist her in this regard and provide her with “closing in” money.
[Wife’s] . . . post-divorce standard of living should be “reasonably comparable to the parties’ standard of living during the marriage.
Husband argued $5000 a month in alimony in futuro was inappropriate, the case being “a perfect example of where only transitional or rehabilitative alimony is warranted.” Husband emphasized that Wife is a certified public accountant who has worked in that field in the past. Husband argued Wife chose not to reactive her professional license and failed to secure new employment that would allow her to rehabilitate herself to a comfortable, self-sufficient level.
Tennessee law establishes a preference, whenever possible, for an award of rehabilitative alimony to an economically disadvantaged spouse. However, “where there is such relative economic disadvantage and rehabilitation is not feasible in consideration of all relevant factors, . . . then the court may grant an order for payment of support and maintenance on a long-term basis. . . .” Thus, long-term spousal support is intended to provide long-term support to an economically disadvantaged spouse who is unable to be rehabilitated.
Applying the statutory factors, the Court ruled:
[W]e agree that economic rehabilitation of Wife to any significant extent is not feasible. . . . Wife’s limited experience, unstable employment history, and advancing age would make it most difficult, if not impossible, to achieve any semblance of financial independence or a standard of living comparable to that the parties’ enjoyed during the marriage.
Notwithstanding our conclusion that alimony in futuro is warranted in this case, we conclude that the evidence preponderates against the amount of the award. Simply put, we discern no basis for awarding Wife $5,000 a month. . . . In our view, the award of $5,000 a month was based on little more than Wife’s request for this amount. Accordingly, we modify the amount of the award of alimony in futuro to $3,200 a month to match Wife’s stated expenses, plus $500 per month toward health insurance. Any award in excess of proven need is punitive and cannot stand.
Accordingly, the trial court’s ruling on parenting time was reversed and the amount of alimony in futuro was modified.
Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.