Court Divided over Rehabilitative or Periodic Alimony in Sevierville, Tennessee Divorce: Santee v. Santee

Tennessee alimonyFactsHusband and Wife divorced after 26 years of marriage. Husband, 57, is a radiologist who earns roughly $500,000 per year. Wife, 50, has been a stay-at-home parent to their five children.

Wife acknowledged having an adulterous relationship one year prior to the separation.

The trial court equally divided the marital property in this marriage of long duration, with each party receiving assets valued at $1 million.

Husband admitted that Wife cannot earn an income anywhere close to the standard of living they enjoyed during the marriage.

Wife testified she wants to get a two-year degree so she can work as a medical assistant.

The trial court found Wife to be economically disadvantaged relative to Husband and that Wife’s earning capacity should be rehabilitated to the extent possible. The trial court then ordered Husband to pay Wife $3500 per month in rehabilitative alimony for 60 months.

Wife appealed.

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

Wife argued the trial court’s award of rehabilitative alimony was insufficient, that she can never achieve a postdivorce standard of living reasonably comparable to that enjoyed by Husband, and that alimony in futuro is needed.

Alimony in futuro, also known as periodic alimony, is a form of long-term support that is appropriate when the economically disadvantaged spouse cannot achieve self-sufficiency and economic rehabilitation is not feasible.

Rehabilitative alimony is short-term support that enables a disadvantaged spouse to obtain education or training and become self-reliant following a divorce. To be rehabilitated means to achieve, with reasonable effort, and earning capacity that will permit the economically disadvantaged spouse’s standard of living after the divorce to be reasonably comparable to the postdivorce standard of living expected to be available to the other spouse.

In Tennessee, there is a statutory preference for rehabilitative or transitional alimony over alimony in futuro or alimony in solido.

The majority held that the trial court’s decision was not an abuse of discretion:

It is undisputed that Wife is the economically disadvantaged spouse. In addition, this was a marriage of quite some duration — over 25 years. These factors would tend to support an award of alimony in futuro. Other factors, however, weigh against such an award of long-term support. For one thing, the trial court found specifically that Wife is in excellent health, and could in time enter the workforce. Also, there is the issue of Husband’s plan to retire from his lucrative career, which naturally would affect his ability to pay. The trial court observed that perhaps it was not coincidental that Wife began her affair around the time she learned of Husband’s plan to retire.

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Wife essentially triggered this divorce. It was legitimate for the trial court to factor this history into its decision making regarding spousal support[,] including both the type and the amount. . . . Our standard of review on the alimony issue being abuse of discretion, we find the trial court did not commit reversible error in declining to award Wife alimony in futuro or in the amount of rehabilitative alimony awarded. While the rehabilitative alimony awarded by the trial court will not transform Wife entirely from being economically disadvantaged, it will enable her to increase her capacity for self-sufficiency. . . .

The trial court’s award of rehabilitative alimony for five years was affirmed.

Dissent: Judge Susano delivered this dissenting opinion:

[T]he evidence clearly and overwhelmingly preponderates against the trial court’s “rehabilitative” decision.

Husband earns approximately $500,000 annually from his profession as a radiologist. Wife, on the other hand, was a stay-at-home wife and mother during the 26 years of the parties’ marriage. Her one business undertaking resulted in a loss of some $10,000. Enough said.

Noting the majority’s rationale that Wife’s two-year diploma to be a medical assistant will increase her capacity for self-sufficiency, Judge Susano continues:

The majority misconstrues the concept of “rehabilitation.” The issue is not whether Wife can “increase her capacity for self-sufficiency” or be in a position to find a good or reasonable standard of living. The real issue is whether Wife can be “rehabilitated” as that concept is defined in Tennessee Code Annotated § 36-5-121 [i.e., the ability to enjoy a reasonably comparable postdivorce standard of living].

In this case, we are comparing (1) a standard of living funded by an income of half a million dollars with (2) that of one attainable by a high school graduate with essentially no work history for some 26 years. We need to look no further than Husband’s own statement. According to him, Wife “has no real ability to earn an income anywhere close to the lifestyle” enjoyed by the parties in their marriage.

The fact that Wife wants to get a two-year degree so she can be a medical assistant misses the point. Wife going forward can never enjoy a standard of living even remotely close to that which she enjoyed in the marriage or the standard of living that Husband will enjoy as a result of his $500,000 annual income.

Judge Susano would have awarded alimony in futuro of $3500 per month.

K.O.’s Comment: This is the battle royale I’ve been waiting for since the arguably inconsistent opinions in Gonsewski and Mayfield.

The Supreme Court’s goal in Gonsewski was to clarify the “purpose” of alimony. That opinion tried to do just that (poorly, in my opinion), and is more consistent with the position asserted here by the dissent.

Shortly thereafter, the Supreme Court muddied the waters in Mayfield by its repeated reference to “self-sufficiency,” a concept that appears nowhere in the alimony statute.

I found both the majority and dissenting opinions here to be disappointing. Neither opinion is all that persuasive, and neither really addresses the counterarguments. Were I a hypothetical fourth member of the Court, I would have authored a separate dissenting opinion.

Nonetheless, the lines have been drawn: is the purpose of alimony to provide for the economically disadvantaged spouse to enjoy a postdivorce standard of living reasonably comparable to that enjoyed by the other spouse, or is it simply to increase the earning capacity of the economically disadvantaged spouse so he or she can be more independent or self-sufficient (whatever that means)?

This conflict has existed for many years, and several cases are supportive of both positions. Unfortunately, both opinions failed to cite much of the precedent supporting their respective arguments.

The majority could have cited, for example, Mays v. Mays, a case where the Middle Section reversed an alimony in futuro award because the wife’s willingness to pursue education to increase her earning capacity meant her earning capacity was capable of at least partial rehabilitation.

Similarly, the dissent could have cited, for example, Lunn v. Lunn, a case where the same three judges who reviewed this appeal unanimously held that alimony in futuro was necessary for the economically disadvantaged spouse to maintain a standard of living reasonably comparable to that which the other spouse can enjoy after the divorce because the economically disadvantaged spouse would still be significantly disadvantaged following partial rehabilitation.

This uncertainty, disparity in outcomes, and muddy water is great for family-law attorneys because it gives us wonderful opportunities for effective advocacy. But it can’t be good for society or the legal system to have such a lack of clarity surrounding the ultimate goal or purpose of alimony. The Supreme Court should take up this case and clear up the confusion that followed Gonsewski and Mayfield.

Santee v. Santee (Tennessee Court of Appeals, Eastern Section, February 15, 2018).

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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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