Alimony for Attorney’s Fees Increased on Appeal in Memphis, Tennessee Divorce: Lucchesi v. Lucchesi

FactsHusband and Wife divorced after 19 years of marriage. Husband was an officer in a family-owned business. Wife, 53, was a stay-at-home parent and homemaker.

After three years of litigation and nine days of trial (!!!), the trial court divided the $4.5 million marital estate $1.6 million to Wife and $2.9 million to Husband.

Comedy_Central_The_Daily_Show_finds_a_silver_lining_around_theBecause of Husband’s attempt to conceal assets and his repeated refusal to answer Wife’s discovery requests, the trial court awarded Wife $200,000 as alimony in solido to assist her with the payment of legal fees “incurred unnecessarily due to Husband’s conduct of delay and failure to comply with repeated requests during the course of the trial.”

Husband’s income was established at $27,000 per month. Wife’s monthly earning capacity was determined to be $2500, and her reasonable monthly expenses to be $12,000. Despite these findings, Wife was not awarded alimony other than the alimony in solido for part of her legal fees.

Wife appealed.

On AppealThe Court of Appeals modified and remanded.

Tennessee recognizes four types of spousal support:

  • alimony in futuro,
  • alimony in solido,
  • rehabilitative alimony, and
  • transitional alimony.

There are no hard and fast rules for spousal support decisions. While the trial court should consider all the relevant factors under the circumstances, the two most important factors are the need of the economically disadvantaged spouse and the obligor spouse’s ability to pay. Of these two factors, the primary consideration is the disadvantaged spouse’s need.

The Court agreed that the trial court’s alimony award was insufficient:

We agree with Wife that, on the record presented, the amount of alimony awarded is insufficient. An award of attorney’s fees in divorce cases is treated as a form of spousal support, and the award is characterized as alimony in solido. These awards are appropriate only when the spouse seeking them lacks sufficient funds to pay his or her own legal expenses, or would be required to deplete his or her resources in order to pay these expenses. The Court found that Wife would deplete her share of the marital estate unless she was awarded some form of alimony, and accordingly awarded her alimony in solido; the $200,000 awarded, however, was contrary to the proof that her counsel fees were $272,000 as of the time of trial. Based upon the division of property in this case, it appears that, in order to pay her attorney’s fees, Wife would deplete a significant amount of her resources. Accordingly, it is appropriate that the award of alimony in solido be increased to $300,000, to cover the amount of attorney’s fees and costs Wife incurred.

In addition, we note that, despite the court’s finding that Wife has a monthly need of $12,000 and earning ability of $2500 per month, and that she has transferable skills and training, the court did not consider whether an award of short-term alimony would be appropriate. . . . The record supports further inquiry as to whether an award of rehabilitative and/or transitional alimony would be appropriate. If rehabilitation of Wife is feasible, the court should determine the amount and duration of such award, and whether an award of transitional alimony is also appropriate. If the court determines that rehabilitative or transitional alimony is not appropriate, the court should consider an additional award of long-term support, in light of Wife’s demonstrated need.

The trial court’s alimony award was modified and remanded for further consideration.

K.O.’s Comment: The trial court’s judgment contains a tutorial on how not to behave in court:

Husband’s antics throughout the trial caused this court to also question Husband’s veracity. Husband frequently had vocal outbursts and made hand gestures to witnesses, including Wife during her testimony. This court and counsel for Husband frequently admonished Husband that his behavior was unacceptable in the courtroom, causing the court on one occasion to require Husband to step into the hallway for a period of approximately 15 minutes. Additionally, at one point during Wife’s testimony, this court ordered Husband to remove himself from the line of sight of Wife as she testified, requiring him to sit by the court’s clerk for a period of approximately one hour.

slap court

Such behavior is harmful to one’s cause. A divorce trial is hardly the time for self-inflicted wounds.

Lucchesi v. Lucchesi (Tennessee Court of Appeals, Western Section, January 23, 2019).

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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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