Facts: Husband and Wife divorced after 27 years of marriage. Wife is disabled and her earning capacity is far less than Husband’s.
The trial court awarded alimony in futuro to Wife in the amount of $2000 per month. The trial court provided for the automatic modification of alimony as follows:
If Husband’s earnings go below $50,000.00, then his alimony obligation shall be prorated based upon his loss of income. The proration shall come at the end of the year.
There is no decrease in alimony until [Wife] earns over $24,000.00. The Court finds that if she is able to earn $25,000.00 per year then Husband’s alimony obligation would decrease by ½ of that $1,000.00 or by $500.00 per year. If she gets a job and earns $34,000.00, $10,000.00 above the $24,000.00 threshold, then the spousal support would diminish by half of that $10,000.00 or by $5,000.00 per year.
On Appeal: The Court of Appeals reversed the trial court.
The general rule is that alimony in futuro is not modifiable until a party files an application and makes the required showings. Tennessee Code Annotated § 36-5-121(a) provides that upon application of either party, the court may award an increase or decrease or other modification of the alimony award based upon a showing of a substantial and material change of circumstances. A change in circumstances is “substantial” when it significantly affects either the obligor’s ability to pay or the obligee’s need for support. A change is “material” if it was not anticipated or contemplated at the time of the original divorce.
Tennessee Code Annotated § 36-5-121(f)(2)(A) states that the court “may” modify alimony in futuro based on a showing of a material change in circumstances. Thus, modification of alimony is not automatic even after proving that a substantial and material change in circumstances has occurred. The party seeking to modify alimony must also affirmatively establish that modification is justified based upon the relevant factors in Tennessee Code Annotated § 36-5-121(i).
Nonetheless, Tennessee courts have approved automatic increases in alimony in limited circumstances, such as when a minor child will soon reach majority and the obligor is no longer required to pay child support. Because the ability to pay alimony is one of the most important factors in determining the amount of alimony, an automatic increase may be appropriate when child support is no longer required. By including the automatic modification provision, the trial courts in those cases spared the parties the additional expense and trouble that they would have otherwise incurred from having to re-open the question of alimony so soon after the court’s decree.
After reviewing the record, the Court concluded:
Except in cases involving unique circumstances that are expected to occur in the near future, automatic modifications are generally not appropriate….
Here, the changes in income on which the trial court predicated its automatic modifications of alimony are not certain to occur “so soon after the court’s decree” or, for that matter, at any point in the near future. Consequently, the advantage of automatically modifying alimony is likely to be overcome by the effects of other unpredictable events…. [T]he statutory provisions governing alimony modification are better tools to manage Husband’s alimony obligation than an attempt to predict the status of all the relevant modification factors at a distant point in the future.
In addition, although the need of the obligee spouse and the obligor’s ability to pay are important factors in initially setting the amount of alimony, they are not the only factors. Moreover, in a subsequent proceeding to modify an alimony award, other factors may be more important. Consequently, automatically modifying alimony based solely on income thresholds will seldom be appropriate.
Accordingly, the portion of the trial court’s judgment that automatically modifies the amount of alimony based on the parties’ future income levels was vacated.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.