Facts: The parties divorced after a 21-year marriage. In the divorce, Wife was designated the primary residential parent of Son, Who Lived with Wife while attending high school. Wife was also awarded transitional alimony for a period of seven years.

A little over one year later — one day after Son’s 18th birthday — Husband petition to reduce or eliminate his transitional alimony on the grounds that Wife was now living with and providing financial support to a third person, namely Son.

After a hearing, the trial court reduced Husband’s transitional alimony by approximately $625 per month, which was the amount of financial support the trial court found Wife was providing to Son.

Wife appealed.

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

Tennessee Code Annotated § 36-5-121(g)(2) provides:

(2) Transitional alimony shall be nonmodifiable unless:
* * *
(C) The alimony recipient lives with a third person, in which case a rebuttable presumption is raised that:
(i) The third person is contributing to the support of the alimony recipient and the alimony recipient does not need the amount of support previously awarded, and the court should suspend all or part of the alimony obligation of the former spouse; or
(ii) The third person is receiving support from the alimony recipient and the alimony recipient does not need the amount of alimony previously awarded and the court should suspend all or part of the alimony obligation of the former spouse.

Tennessee courts have consistently held that the “lives with a third person” language applies to any third person, including adult children. Nowhere does the statute indicate there must be any type of liaison, sexual or otherwise, between alimony recipient and third person. The nature of the relationship between alimony recipient and third person is irrelevant to the statute. It applies in all cases where an alimony recipient ‘lives with a third person,’ regardless of the relationship, or the gender of the third person.

A finding that an alimony recipient is living with a third person does not end the inquiry of whether transitional alimony should be suspended in whole or in part. Such a finding merely shifts the evidentiary burden in a modification proceeding to the alimony recipient. Once the presumption arises, the alimony recipient bears the burden of demonstrating a need for the previously awarded alimony, notwithstanding the cohabitation.

In order to determine whether the presumption is rebutted, a court must examine the financial circumstances of the alimony recipient at the time of the modification hearing to see whether the recipient has demonstrated a continuing need for the previously awarded amount of alimony. Tennessee courts have frequently held that an alimony recipient has rebutted the presumption by demonstrating continuing need, despite living with a third person and either receiving support from, or providing support to, the third person.

After reviewing the record, the Court concluded:

In the present case, husband stopped providing any financial support to his children as soon as they turned eighteen. He acted within his right in doing so. He removed [Son] from his health insurance, prompting wife to pick up the added expense of putting [Son] on her health insurance….

It appears from the evidence presented that the only significant changes in wife’s financial situation since the final divorce judgment are that she stopped receiving child support of $507 per month from husband when [Son] turned eighteen, and wife’s additional health insurance expense from adding [Son]….

Wife has admitted that she “helps both of [her] children when I can financially afford to do so” while they are trying to get a college education. We do not believe it is fair for her to be penalized for doing so, nor does the alimony statute require such a result. Wife’s economic situation is on a downward spiral unrelated to her help for her children. Under the circumstances, we hold that wife has rebutted the statutory presumption and demonstrated her continuing need for the amount of transitional alimony initially awarded by the trial court. The trial court’s judgment reducing wife’s transitional alimony is reversed.

Wife was also awarded her attorney’s fees and discretionary costs. The case was remanded to the trial court to determine those amounts.

Hickman v. Hickman (Tennessee Court of Appeals, Eastern Section, February 26, 2014).

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