Alimony in futuro Vacated in Memphis, Tennessee Divorce: Ellis v. Ellis

FactsHusband and Wife, the parents of four adult children, divorced after 35 years of marriage.

Husband is a surgeon. Wife is a former nurse who was a stay-at-home parent after the birth of the parties’ second child. She maintained her nursing license, however.

old nurseHusband’s vocational expert testified that after some nursing refresher courses, Wife could earn $4177 per month.

Wife’s vocational expert testified that Wife’s earning capacity as a nurse was $2326 per month.

The trial court found that Wife could earn “a reasonable income” as a nurse. It also determined that Wife’s monthly need for income to enjoy a postdivorce standard of living reasonably comparable to Husband’s was “something in the neighborhood of $8000.”

Wife was awarded alimony in futuro of $9000 per month. Wife was awarded $122,000 of alimony in solido for her attorney’s fees.

Husband appealed.

On AppealThe Court of Appeals vacated the trial court’s judgment.

Alimony in futuro is a form of long-term spousal support that may be awarded when the court finds “there is a relative economic disadvantage and that rehabilitation is not feasible.”

The Court faulted the trial court for failing to make the necessary findings:

[T]he trial court’s alimony in futuro award should be vacated and remanded for reconsideration. First, the trial court, without further explanation, awarded Wife $9000 per month of alimony in futuro, notwithstanding its finding that Wife’s monthly need was “something in the neighborhood of $8000.” Moreover, the trial court, in making its alimony award, failed to consider its other findings that Wife could “reasonably reenter the employment market” and “is capable of earning a reasonable income as a nurse based on her education, training, and background” even though Wife stated she had no intention of returning to work. . . . Husband’s expert testified Wife could earn at least $4177 per month in income. Wife’s expert testified that Wife could earn at least $2326 per month. In determining the amount of alimony in futuro to award Wife, however, the trial court did not factor in these wage ranges provided by both parties’ experts, despite the fact that the relative earning capacity of both parties is one of the statutory factors the trial court must consider when calculating such an award.

* * * * *

[W]e are compelled to note that the nature of the alimony awarded was itself without a proper factual foundation. Namely, it does not appear that the trial court ever specifically found that Wife’s economic rehabilitation was not feasible.

The trial court’s judgment was vacated and remanded for reconsideration. The court observed that, on remand, the trial court “is not foreclosed from awarding Wife long-term support, but any such award should be supported by proper findings in consideration of the relevant alimony factors.”

The trial court’s award of alimony in solido for Wife’s attorney’s fees was also vacated:

[T]he trial court did not make a finding of reasonableness, nor does it refer to Rule [of Professional Conduct] 1.5 or any of its factors; it simply awarded Wife an amount of fees with no further findings or explanation. Accordingly, we vacate the trial court’s award of attorney’s fees and remand for a new determination as to whether Wife should be awarded her attorney’s fees and, if so, the reasonableness of such fee award, with findings by the trial court reflecting that it considered all of the factors outlined above and the applicable caselaw.

K.O.’s Comment: The opinion does not state Wife’s age, but, after 35 years of marriage, one must assume she is at least in her mid-to-late 50s. At that age, is there any doubt that Wife cannot rehabilitate her earning capacity to be reasonably comparable to that of a surgeon? On remand, the trial court should confirm the obvious, i.e., there is no training or education available to a former nurse in her mid-to-late 50s that will allow her to enjoy a standard of living reasonably comparable to that available to a surgeon. Also, water is wet.

Tennessee alimony

Ellis v. Ellis (Tennessee Court of Appeals, Western Section, January 31, 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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