Refusal to Modify Rehabilitative Alimony After Nashville Divorce Reversed on Appeal: Owens v. Owens

Facts: Husband and Wife had been married for 25 years when they were divorced in 2004. In their divorce, Wife was awarded rehabilitative alimony of $3000 per month beginning in May 2007 and ending in November 2012.

Wife filed a petition in October 2009 seeking an increase of her alimony payments in both amount and duration, or, in the alternative, alimony in futuro. Wife alleged she had been unsuccessful in her endeavors to earn a living by selling real estate or working as a yoga instructor.

Although the trial court found that Wife had a continuing need for alimony, it found that she failed to prove that all reasonable efforts at rehabilitation had been made and were unsuccessful.

Wife appealed.

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

Rehabilitative alimony is designed to provide an economically disadvantaged spouse support for a period of time to enable her or him to become and remain self-sufficient. It is intended to promote the self-sufficiency of the disadvantaged spouse by allowing him or her to acquire additional job skills, education, or training.

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. According to this statutory definition, the question becomes whether Wife can generate enough income to provide a pre-divorce standard of living or one comparable to Husband’s post-divorce standard of living.

Once awarded, rehabilitative alimony may be modified if the recipient’s prospects for economic rehabilitation materially change. If rehabilitation is not feasible, the trial court may then make an award of alimony in futuro.

In a modification of alimony proceeding, a change in circumstances is “material” when the change occurred after alimony was initially awarded and was not anticipated when the marital property was divided, and a change is “substantial” when it affects either the recipient’s need for support or the obligor’s ability to pay.

After reviewing the evidentiary record, the Court concluded:

Wife is currently in her mid-60s and has not been able to become self-sufficient as a real estate agent, as she had planned. Wife presented testimony of her need for support and the trial court found that she had a need for continuing support.

We agree with the trial court’s finding that Wife needs continuing support and conclude that alimony in futuro is appropriate in this case. The record reveals that Husband’s income, while not the same year to year, has increased since the parties were divorced in 2004 and that he has fewer expenses now than he did then. The trial court concluded Husband has the ability to continue paying the amount of rehabilitative alimony previously ordered, and Husband does not contest this finding….

Considering the totality of the circumstances, we conclude Wife is entitled to alimony in futuro payments of $2,000 per month beginning in December of 2012, the month after her rehabilitative alimony award terminated.

While [Tennessee law] reflects a statutory preference favoring rehabilitative spousal support and transitional spousal support over long-term periodic spousal support, this statutory preference does not entirely displace the other forms of spousal support when the facts of the case warrant long-term or more open-ended support.

Accordingly, the trial court was reversed. Wife’s rehabilitative alimony was modified to permanent alimony.

Owens v. Owens (Tennessee Court of Appeals, Middle Section, July 30, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial 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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