Facts: The parties divorced after 23 years of marriage.

Husband earned between $100,000 and $120,000 per year, depending on bonuses.

Wife earned $39,000 per year but had the capability to earn up to $50,000 with additional education.

The trial court found Wife could not be rehabilitated and awarded her alimony in futuro of $2000 per month for 12.5 years, at which time wife would be 65 years old.

Husband appealed.

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

Alimony in futuro, a form of long-term support, is awarded where an economically disadvantaged spouse’s economic rehabilitation is not feasible.

Rehabilitative alimony is short-term support that enables an economically disadvantaged spouse to obtain education or training and become self-reliant following a divorce.

Tennessee Code § 36-5-121(e)(1) says 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.

Where economic rehabilitation is unnecessary, transitional alimony, which is intended to assist the disadvantaged spouse in transitioning to the status of a single person, may be awarded.

After reviewing the record, the Court reasoned:

Wife testified that she had a degree in public management; that her degree qualified her for several non-specialized government jobs; that she had not made any effort to utilize her degree; that she possessed skills in “Excel [and] Word”; that she had experience as a probation officer and in “financial aid procedures”; and that she had no physical limitations. Wife also testified that she “loved numbers” and had investigated a two-year accounting certificate program offered at Lipscomb University, costing “$16,000 to $18,000” and that with the certificate her income could rise from $39,000 per year to “about 45 or 50.” This testimony supports a determination that Wife can be rehabilitated and achieve a higher income in the future, and that the long-term support as ordered by the court may not be necessary.

Because the evidence preponderates against the court’s finding, we reverse the award of alimony in futuro. For the same reasons, the evidence supports an award of rehabilitative alimony; accordingly, we remand the case for a determination of the duration and amount of the award.

Thus, the trial court’s award of alimony in futuro was reversed.

K.O.’s Comment: I think the Court of Appeals erred by creating an equivalence between having the potential to earn a higher income and being “rehabilitated.” The trial court found that even though Wife could potentially earn slightly more with additional education, that higher income would still not render her “rehabilitated” as that term of art is defined in Tennessee Code § 36-5-121(e)(1).

Compare this outcome with that in Henderson v. Henderson, which opinion was issued the same day as Willenberg and involved the same three Court of Appeals judges. Henderson involved a 21-year marriage where Husband earned around $100,000 per year and the 50-year-old Wife with some health limitations and a history as a homemaker earned approximately $7800 per year. The trial court awarded Wife alimony in futuro of $2100 per month, expressly finding that “Wife cannot be rehabilitated, or able to achieve an earning capacity that will permit her [to attain the] standard of living enjoyed during the marriage, or to the Husband’s expected post-divorce standard of living.” The Court of Appeals held the evidence did not preponderate against the trial court’s finding.

How do we reconcile these two outcomes? Both cases involve long marriages, large economic disparities between the parties, a property division award to Wife in excess of $300,000, and findings below that the economically disadvantaged spouse, Wife, will not be able to enjoy a reasonably comparable post-divorce standard of living as compared to the economically advantaged spouse, Husband. In Willenberg, the record contained evidence that Wife could earn slightly more income through additional education. The opinion in Henderson only reflects Husband’s argument that Wife has the capacity to earn more than she currently earns despite what the trial court found to be Wife’s “very limited earning capacity.” Evidently the ability to earn slightly more income through additional education was enough for these three judges to find the Wife in Willenberg capable of rehabilitation.

Willenberg v. Willenberg (Tennessee Court of Appeals, Middle Section, September 23, 2014).

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