Facts: Husband and Wife divorced after 24 years of marriage.

Wife was 58 years old, in good health, and working full-time.

Husband was 47 years old, in fair health, and working full-time.

Wife requested $700 per month in alimony in futuro.

The trial court awarded wife $250 per month in alimony in futuro until she retires from her employment. Thereafter, Wife would be entitled to $100 per month, payable until Wife’s death or remarriage.

Husband appealed.

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

Tennessee law recognizes four types of spousal support: (1) alimony in futuro, (2) alimony in solido, (3) rehabilitative alimony, and (4) transitional alimony.

There is a statutory bias toward awarding transitional or rehabilitative alimony over alimony in solido or in futuro. While this statutory preference does not entirely displace long-term spousal support, alimony in futuro should be awarded only when the court finds that economic rehabilitation is not feasible and long-term support is necessary.

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.

In order to determine whether to award alimony and, if so, the amount and duration of the award, the court is directed to consider several factors, including the age, mental condition, and physical health of the parties, the length of the marriage, the parties’ relative earning capacities, the separate assets of the parties, the provisions made with regard to marital property, and the standard of living the parties’ enjoyed during the marriage. Although the trial court should consider all relevant factors, the two that are considered the most important are the disadvantaged spouse’s need and the obligor spouse’s ability to pay.

After reviewing the record, the Court concluded:

After a thorough review of the record, we conclude that the trial court has overestimated both Wife’s need and Husband’s ability to pay. First, we note that by the trial court’s own calculations, Wife’s deficit totals only $200.00 per month. Despite this finding, the trial court awards Wife $50.00 per month over her deficit in alimony until her retirement….

There was nothing presented at trial to show that Husband’s expenses were unreasonable or frivolous or that he was manipulating his income in an effort to avoid paying spousal support. Indeed, the trial court noted that both parties were financially responsible…. Accordingly, by all accounts, Husband has only approximately $43.00 per month in excess income….

Based upon the undisputed facts in the record, Husband simply does not have the excess income to pay Wife support of this amount…. In addition, Wife has independent funds with which to finance her retirement, including her pension with the penitentiary, her 401K, and the funds awarded to her from Husband’s 401K, as well as her social security benefits, as specifically found by the trial court. Given these funds, it is not clear that Wife will be in need of alimony even after her retirement; thus, despite the long duration of the parties’ marriage, the presumption in favor of rehabilitative or transitional alimony inherent in the Tennessee alimony statute militates in favor of short-term support. Consequently, the trial court’s own findings regarding Wife’s expenses, the purpose of the alimony award to Wife, and Husband’s excess income, do not support the alimony award in this case….

Based upon the foregoing, we have determined that Wife has a significant need for spousal support and Husband has some ability to pay. Accordingly, we conclude that Wife is entitled to an award of $43.00 per month in transitional alimony, to be paid until her retirement.

Accordingly, the trial court’s judgment was reversed, the amount of the alimony award was lowered from $250 to $43 per month, and the type of alimony was changed from alimony in futuro to transitional alimony terminating upon Wife’s retirement.

Ezekiel v. Ezekiel (Tennessee Court of Appeals, Western Section, August 17, 2015).

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