Transitional Alimony Modified to Permanent Alimony in Chattanooga Divorce: Lunn v. Lunn

Facts: Husband and Wife divorced after 17 years of marriage. They have three children.

Husband is a dentist. Wife is a registered nurse but worked primarily as a homemaker since the birth of the parties’ first child at the beginning of their marriage. Wife did not maintain her nursing certification after the joint decision that she would be a stay-at-home parent and homemaker. Wife was primarily tasked with the caregiving responsibilities for the children and management of the household while Husband was the primary wage earner.

appealIn 2009, Husband became involved in an extramarital relationship with his dental assistant. After some marital counseling, the parties separated. This divorce followed.

The trial court determined the applicable statutory factors weighed in favor of an award of alimony to Wife. Finding that Wife needed time to reestablish her career, the trial court awarded her rehabilitative alimony of $3600 per month for three years.

Also finding that Wife would not be able to earn an income comparable to that of Husband, the trial court awarded her transitional alimony in progressively decreasing amounts for 16 years, the approximate duration of the parties’ marriage. Wife was awarded $6451 per month for three months, $2288 per month for eight years, and $500 per month for eight years after that.

The trial court also awarded Wife alimony in solido of $207,000 to pay her attorney’s fees.

Husband appealed

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

Husband argued the award of transitional alimony was error because transitional alimony, which has been defined as “short-term support,” should not have been awarded for a period of 16 years.

Transitional alimony is appropriate when a court finds that rehabilitation is not required but that the economically disadvantaged spouse needs financial assistance in adjusting to the economic consequences of the divorce. Simply put, this type of alimony aids the person in the transition to the status of a single person. In contrast to rehabilitative alimony, which is designed to increase an economically disadvantaged spouse’s capacity for self-sufficiency, transitional alimony is designed to aid a spouse who already possesses the capacity for self-sufficiency but needs financial assistance in adjusting to the economic consequences of establishing and maintaining a household without the benefit of the other spouse’s income. As such, transitional alimony is a form of short-term support.

Transitional alimony is awarded when the court finds that rehabilitation is not necessary, but the economically disadvantaged spouse needs assistance to adjust to the economic consequences of a divorce. Alimony in futuro, by contrast, may be awarded in addition to an award of rehabilitative alimony where a spouse may be only partially rehabilitated.

After reviewing the record, the Court reasoned:

Even with rehabilitation, Wife’s earning capacity will only measure as a fraction of the earning capacity of Husband. Husband will in all probability maintain greater financial resources in the future than Wife. The parties enjoyed a marriage of relatively long duration. Wife is the primary residential parent of the children, spending a significant portion of her time engaged in activities related to the children. The parties enjoyed a luxurious standard of living during the marriage, with both contributing their efforts to the marital estate as wage earner and homemaker respectively. Finally, as determined by the trial court, Husband must bear the fault for the divorce. Accordingly, while modifying its form and duration, we affirm the trial court’s grant of alimony to Wife.

Wife’s ability to achieve partial rehabilitation is not disputed, thus the award of rehabilitative alimony is proper. We conclude, however, that it is appropriate to modify the transitional alimony award to an award of alimony in futuro. As previously explained, transitional alimony should be awarded where rehabilitation is not necessary. If, as here, the disadvantaged spouse can be only partially rehabilitated, an award of alimony in futuro may be granted in addition to rehabilitative alimony. Having determined that the trial court correctly found that Wife would experience an ongoing need for alimony beyond the period of rehabilitation, we conclude alimony in futuro would be the more appropriate form of this award. We therefore modify the trial court’s judgment accordingly….

As Wife will likely confront an extreme economic disadvantage compared to Husband following rehabilitation, she will need an additional amount of alimony in order to maintain a standard of living reasonably comparable to that which she enjoyed during the marriage, or which Husband will be able to enjoy following the divorce. We conclude that $2,288 per month is an appropriate amount based on the purpose of rendering the standard of living reasonably comparable between the two households.

Accordingly, the trial court’s award of transitional alimony was modified to alimony in futuro of $2288 per month until the death or remarriage of Wife.

Dissent: Judge Swiney issued a partial dissent, stating:

I cannot agree with the majority that the amount of alimony in futuro awarded to Wife should be increased from $500 per month after eight years to $2288….

The majority’s changing of the alimony from transitional to in futuro, a change I agree with, means that Wife will likely receive considerably more in this alimony than she would have under the trial court’s alimony award…. [T]he majority without any request or argument being made by Wife to increase the $500 per month alimony then decides sua sponte and without the legal necessity of doing so to increase the amount from $500 per month to $2288 per month. The majority has not only more than just tinkered with the amount of alimony awarded, something we normally avoid if possible, it has done so without any request or legal necessity that it do so….  I [] would have the now alimony in futuro decrease from $2288 per month to $500 per month as originally ordered by the trial court.

K.O.’s Comment: I imagine the telephone call from Husband’s lawyer was awkward. “I have some good news! Congratulations, we won our appeal! Yeah, I know I’m amazing. Thanks. Umm… also… uhhh, the *cough* 16 years of transitional alimony you thought was too long was *cough* converted to *cough* *cough* lifetime alimony. Gotta go. Bye.”

Unhappy litigants often want a second opinion on their case. This case shows one needs to be careful what one wishes for. One can win the battle but lose the war.

Lunn v. Lunn (Tennessee Court of Appeals, Eastern Section, June 29, 2015).

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