Rehabilitative Alimony Affirmed 2-1 Despite Wide Disparity in Earning Capacity: Duke v. Duke

Facts: The parties divorced after nearly 20 years of marriage. Husband is a physician. Wife, who was 41 years old, had previously worked for seven years as a registered nurse but had been a stay-at-home mother and homemaker for the last 15 years of the marriage. After a six-day trial (!), the trial court awarded Wife over $4.5 million in assets as part of the division of the marital estate (according to Husband) and rehabilitative alimony in the amount of $8000 per month for a period of eight years. Wife was also awarded over $309,000 in attorney’s fees and expenses, which amount was approximately one-third of the total amount of her attorney’s fees and expenses. Both parties appealed. Although many issues were appealed, the only one I find to be of interest is the alimony ruling.

On Appeal: A divided Court voted 2-1 to affirm the trial court.

Husband argued that Wife failed to demonstrate a need for alimony considering that she received over $4.5 million in assets from the division of property. Conversely, Wife argued the award of alimony should be permanent because there is no evidence that she can be rehabilitated. Wife asserted that Husband will continue earning over $1 million per year while her earnings as a nurse will never be able to approach even 10% of Husband’s income.

The majority affirmed the trial court’s award of rehabilitative alimony, writing:

[T]he fact that [Husband] may earn more than [Wife] in the future, when considered with the other statutory factors, fails to support either a conclusion that rehabilitation is not feasible or that long term support is necessary. . . . [T]he “need” to be met in considering an award of rehabilitative alimony is the need to be rehabilitated to increase earning capacity and to be assisted in the rehabilitation, not a perceived “need” to reach parity with the obligor spouse.

The evidence does not preponderate against the court’s determination that [Wife] can be rehabilitated in such a manner that she can return to the workforce at an increased earning capacity and that, with rehabilitation, her post-divorce standard of living will be reasonably comparable to the standard of living both parties enjoyed prior to the divorce and that of [Husband] after the divorce. . . . We affirm the award of alimony in all respects.

Judge Cottrell dissented from the majority’s alimony ruling, stating:

I disagree with the majority’s analysis of the requirements for rehabilitative alimony. All types of alimony are statutory, and the legislature’s definitions must be applied. . . . Tennessee Code Annotated § 36-5-121 provides in parts (d)(2) and (e)(1) that “to be rehabilitated” means

to achieve, with reasonable effort, an earning capacity that will permit the economically disadvantaged spouse’s standard of living after the divorce to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse, considering the relevant statutory factors and the equities between the parties.

. . . Based on my review of the facts, I cannot conclude that the evidence establishes that the wife’s post-divorce earning capacity will allow her a standard of living comparable to Husband’s. Accordingly, I would hold that the facts preponderate against the trial court’s finding that the wife can be rehabilitated.

K.O.’s Comment: I am inclined to agree with Judge Cottrell’s position (although I have not reviewed the appellate record). The majority baldly states that some unstated form of rehabilitation can provide Wife with a post-divorce standard of living reasonably comparable to that that will be enjoyed by Husband, who earns at least 15 times what Wife is capable of earning. That’s seems dubious, at best. Of course, it would have helped if the trial court had explained its conclusion that Wife was capable of “rehabilitation” as that term of art is defined in the statute. The majority correctly says the “need” to be met in rehabilitative alimony is an increase in earning capacity but an increase of what amount? It need not be exact “parity” with the other spouse, as the majority states, but the Legislature says it needs to be a reasonably comparable standard of living. It seems to me that the majority ignores the statutory definition of “to be rehabilitated.”

Duke v. Duke (Tennessee Court of Appeals, Middle Section, June 1, 2012).

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