Facts: Husband and Wife divorced after 23 years of marriage. Husband was ordered to pay alimony in futuro of $10,000 per month.

Several years later, Husband petitioned to reduce or terminate his alimony obligation on the grounds of Wife’s cohabitation with her boyfriend.

The trial court found Wife was not cohabitating with anyone.

Husband appealed.

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

An award of alimony in futuro may be modified or terminated upon proof that a substantial and material change in circumstances has occurred since the entry of the original alimony order.

To be material, a change in circumstances must have been unforeseeable, unanticipated, or not within the parties’ contemplation when the order for alimony was awarded. To be substantial, the change must significantly affect either the obligor spouse’s ability to pay or the obligee spouse’s need for the support.

Even if the obligor is able to show a material and substantial change in circumstances, modification must also be justified under the factors relevant to an initial award of alimony, particularly the receiving spouse’s need and the paying spouse’s ability to pay.

Tennessee Code Annotated § 36-5-121(f)(2)(B) addresses cohabitation and provides:

In all cases where a person is receiving alimony in futuro and the alimony recipient lives with a third person, 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.

After reviewing the record, the Court concluded:

Our review of the record shows that Husband presented evidence that Wife may have spent more than six days at a time at [her boyfriend’s] house in Florida at different points in time, but this alone is insufficient to prove Wife was cohabitating with [her boyfriend]. Moreover, as the trial court found, there was no proof that Wife supported [her boyfriend] or that [her boyfriend] supported Wife. Finally, Wife testified that her need for the spousal support had not changed since it was modified a few years earlier. We cannot say, based on the evidence presented at trial, that the evidence preponderated against the trial court’s conclusion that Wife was not cohabitating with [her boyfriend].

Accordingly, the trial court was affirmed.

Wiser v. Wiser (Tennessee Court of Appeals, Middle Section, April 30, 2015).

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