Facts: After 27 years of marriage, the parties divorced. Husband worked as an engineering supervisor on remote nuclear construction sites. Wife did not work outside the home during most of the marriage. Although Husband had been laid off just before trial, and was unemployed at the time of trial, the trial court found that he had the ability to pay alimony based on his earning potential and ability to find employment. The trial court ordered Husband to pay Wife alimony in futuro of $1100 each month, which was one third of what the trial court found to be Wife’s need. The trial court further suggested the parties return for an additional hearing on what the alimony in futuro amount should be once Husband secured employment.

A few years later, Husband underwent knee surgery, after which he did not return to work. Husband moved to reduce his spousal support obligation on the grounds that his physical ability to return to work was uncertain after his knee surgery.

In response, Wife filed a motion to increase alimony, arguing that Husband had the ability to regain his previous employment and salary but had not done so in an effort to avoid his support obligation.

At trial, Husband testified that he made a conscious decision not to return to his previous employment. He stated that he intended to work again but was unsure as to when he would return to work and what the nature of his next employment would be.

The trial court found that “the decisions made by [Husband] relative to his employment are unreasonable and have not been made in good faith.” The trial court specifically found that Husband had not proven his inability to work, “his income is underrepresented on his tax returns and Social Security records, based upon his lifestyle and expenses,” and “[Wife’s] expenses exceed her income by a significant margin.” The trial court denied Husband’s motion to reduce his alimony obligation and granted Wife’s motion to increase the obligation. Husband alimony obligation was increased from $1100 per month to $2000 per month.

Husband appealed.

On Appeal: In a 2-1 decision, the Court of Appeals affirmed the trial court.

Husband argued that his recent surgery constituted a material change entitling him to a reduction in his alimony obligation. Further, he argued that Wife’s circumstances had not changed since the divorce and, therefore, she was not entitled to an increase in the alimony she received.

A court may not modify or terminate a spousal support award unless it first finds that a substantial and material change in circumstances has occurred since the entry of the original support decree. In the typical case involving modification of spousal support awards, a change in circumstances is considered to be “material” when the change (1) occurred since the entry of the divorce decree ordering the payment of alimony, and (2) was not anticipated or within the contemplation of the parties at the time they entered into the property settlement agreement. Moreover, a change in circumstances is considered to be “substantial” when it significantly affects either the obligor’s ability to pay or the obligee’s need for support. The two most important considerations in modifying a spousal support award are the financial ability of the obligor to provide for the support and the financial need of the party receiving the support.

In affirming the trial court’s denial of Husbands effort to reduce his alimony obligation, a unanimous Court wrote:

[W]e conclude that the trial court accurately summarized and considered the relevant proof in its spousal support determination. The proof showed that in his work as a supervising engineer, Husband was responsible for verifying and inspecting the installation of equipment on construction sites. By the end of the marriage, his reported salary was over $100,000. In addition, Husband continued to receive some $1,200 a month in military disability benefits. As the court found, Husband demonstrated significant earning capacity despite his earlier knee surgeries….

Husband presented no evidence of his inability to continue to work in his chosen field whether with his former employer or another company.

A divided Court affirmed the trial court’s conclusion that an increase in Wife’s alimony was appropriate, stating:

Husband’s “unreasonable” decision not to work at all, as the trial court deemed it, constitutes a changed circumstance that justified an upward modification of the alimony award based on Husband’s demonstrated work history and earning capacity….

[T]he evidence clearly preponderates that there has been a change in circumstances since the date of the divorce hearing warranting an increase in spousal support. The change is simply this: at the time of the divorce, Husband had a legitimate reason why he could not work; at the time of the modification hearing . . . he did not have a good reason for his failure to pursue gainful employment.

Accordingly, the trial court was affirmed.

Dissent: Judge Swiney wrote a dissenting opinion in which he agreed with the Majority’s conclusion that Husband was not entitled to a decrease in his alimony obligation but dissented from the Majority’s conclusion that the evidentiary record supported an increase in Wife’s alimony, writing:

[Wife] presented no proof that [Husband] has or even ever will recover sufficiently from his knee replacement to be able to go back to his work. Perhaps [Husband] has made such a recovery, but if so this record contains no proof that he has, and any such “finding” that he has is based on nothing more than an assumption or speculation that his knee replacement surgery resulted in his being able to return to his work in the construction industry.

I believe neither [Husband] nor [Wife] satisfied his or her burden of showing a material change of circumstances sufficient to modify the alimony awarded in the divorce.

K.O.’s Comment: The opinion also states that Husband “performed one or two shows a month as an ‘Elvis¹ tribute artist.'” To avoid any potential for confusion, footnote 1 reads: “Elvis Presley.” Thank you, thank you very much.

Fields v. Fields (Tennessee Court of Appeals, Eastern Section, December 27, 2013).

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