Posted by: koherston | July 27, 2016

Court Divided over Alimony in futuro in Sumner County, TN Divorce: Donaldson v. Donaldson

Facts: Husband and Wife divorced after 26 years of marriage.

Husband is 53 years old. He has a GED and works in the concrete industry, as he has for most of his working career. His annual income is approximately $67,000.

Wife is 52 years old. She has a Ph.D. and is a university professor earning approximately $112,000 a year.

tennessee alimonyDuring the marriage, the parties agreed Wife’s career would take precedence over Husband’s career. As a result, Husband performed more childcare responsibilities, homemaking activities, and made more employment concessions, such as relocating from Atlanta to Nashville for Wife’s career.

The trial court determined Husband is economically disadvantaged and has a need for alimony “given the disparity in earning capacities” between the parties. The court awarded Husband alimony in futuro of $1450 per month.

Wife appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court.

Wife argued the award of alimony in futuro had no factual basis other than the disparity of earnings between the parties.

The Court of Appeals was troubled by the lack of factual findings:

We have determined that the trial court has not made adequate findings relative to the determination that Husband has a need for alimony and that Wife has the ability to pay; that rehabilitative, transitional, or other short-term alimony is not feasible; or that Husband required long-term support. Moreover, we fail to see the factual basis of an award of $1,450 per month when Husband’s testimony did not account for an excess of approximately $1,300 per month, and Wife’s testimony showed an excess of approximately $400. In the absence of such findings, we are unable to afford the trial court’s decision the deference normally afforded to such decisions.

For the foregoing reasons, we vacate the award of $1,450 per month in alimony in futuro and remand for reconsideration of the type, duration and amount of alimony, if any, to be awarded.

The case was sent back to the trial court for further proceedings.

Dissent: Judge Swiney filed a dissenting opinion opining that the trial court made adequate findings. He also says Husband is an economically-disadvantaged spouse because he is incapable of earning enough to allow his postdivorce standard of living to be reasonably comparable to that of Wife’s. Judge Swiney then gets to the heart of the matter:

This case does illustrate the difficulty courts are faced with because of conflicting goals in alimony cases. First, as correctly stated by the majority, “[T]here is a statutory bias toward awarding transitional or rehabilitative alimony over alimony in solido or in futuro.” Gonsewski v. Gonsewski, 350 S.W. 3d 99, 109 (Tenn. 2011). Then, however, courts are instructed by statute, also as set out by the majority, that alimony in futuro is appropriate when there is a relative economic disadvantage and that rehabilitation is not feasible as defined by the statute as already discussed. This inherent conflict is evident from the facts in this case. We have a spouse, Husband, who makes approximately $67,000 a year in a stable job. Certainly, Husband has the financial ability to take care of himself. However, we have the other spouse, Wife, who because of her greater income is able to enjoy a post-divorce standard of living much higher than what Husband can afford solely on his income.

Judge Swiney would have affirmed the trial court.

K.O.’s Comment: Let me begin with this disclaimer: I have not read the record like the Court did. With that caveat, I believe both the majority and dissenting opinions are wrong.

I saw nothing in the trial court’s findings indicating that Husband “suffered economic detriment for the benefit of the marriage.” See Tennessee Code Annotated § 36-5-121(c)(1)-(2).

In the absence of that finding, how is Husband economically disadvantaged relative to Wife? We know the mere fact that there is a disparity in earnings does not render Husband economically disadvantaged. For example, in McKee, the Middle Section held that despite a wide income disparity, the husband was not economically disadvantaged because he did not subordinate his career for the sake of the marriage. In Rogin, the Western Section held that despite a large disparity in earnings, there was no economic disadvantage where the husband did not subordinate his career for the family’s needs.

Without proof and a finding that Husband suffered economic detriment for the benefit of the marriage, how is this even an alimony case?

Assuming arguendo it is an alimony case, the dissent concedes Husband is capable of self-sufficiency. The Tennessee Supreme Court explained in Mayfield that “[a]n award of alimony in futuro is appropriate when the economically disadvantaged spouse cannot achieve self-sufficiency and economic rehabilitation is not feasible.” Despite Husband’s admitted capability for self-sufficiency, Judge Swiney would affirm the award of alimony in futuro.

Judge Swiney is correct that it often appears there are “conflicting goals in alimony cases.” The statutes certainly could use some clarification. But until that happens, family law attorneys and trial courts have to look to the often contradictory interpretation of the statutes from the appellate courts.  The Tennessee Supreme Court tried to clarify things in Gonsewski and more so in Mayfield, but we still see puzzling outcomes like this one. If alimony law in Tennessee is appears to have conflicting goals, it is because both the legislature and the appellate courts — in opinions like this one — have made it so.

Donaldson v. Donaldson (Tennessee Court of Appeals, Middle Section, June 30, 2016).

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


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