Facts: Wife filed for divorce alleging adultery and emotional, verbal, and physical abuse by Husband. Shortly before trial, Husband stipulated that Wife could have a divorce on the grounds of adultery and inappropriate marital conduct.
After five days of trial, the trial court divided the marital property. Each was awarded 50% of the equity in the marital residence, or $22,622 each.
Notably, the trial court found that both parties would “leave the marriage with essentially equal assets” and “both parties will have a similar ability to maintain the same standard of living” in light of their comparable incomes.
After the trial court found that Wife lacked the resources to pay her attorney’s fees, she was awarded $53,124.86 for her attorney’s fees as alimony in solido from Husband’s portion of the equity in the marital residence ($22,622) with the balance paid by Husband at the rate of $370 a month.
On Appeal: In a 2-1 decision, the Court of Appeals affirmed the trial court.
Tennessee Code Annotated §§ 36-5-121(d)(5) and -121(h)(1) provides that alimony in solido may include attorney’s fees. This can occur when the spouse seeking alimony in solido lacks sufficient funds to pay his or her attorney’s fees, or the spouse would have to deplete his or her resources to pay them.
As with any alimony award, the trial court must consider the statutory factors in § 36-5-121(i).
An award of attorney’s fees is appropriate when the economically disadvantaged spouse lacks sufficient funds to pay his or her legal expenses or would have to deplete his or her resources to pay them.
After finding the evidence supports the trial court’s finding that Wife lacks the resources to pay her attorney’s fees, the Court explained:
There is no evidence in the record that would suggest Wife was in any way at fault in the demise of the marriage. Husband finally stipulated to his fault, and there was an overwhelming amount of testimony supporting his sole role with respect to the end of this marriage. The dissent is wrong in saying that Wife is simply trying to punish Husband. Nothing could be further from the truth. Husband’s adulterous affairs, his abuse of alcoholic beverages, and his psychological and physical abuse are certainly relevant to our task in this case. As a practical matter, had Husband not “strayed,” there would probably not have been a divorce and no attorney’s fees to be paid in the first place. Husband’s position in this case is an attempt to add “insult to injury.”
The trial court did not abuse its discretion in burdening Husband with the payment of Wife’s attorney’s fees. All of the equities in this case favor Wife. She “won” essentially all of the contested issues (i.e., grounds and custodial issues). She was the prevailing party.
The trial court’s judgment was affirmed. Wife was also awarded her attorney’s fees on appeal.
Dissent. Judge Swiney wrote this dissenting opinion:
As found by the trial court, these parties are economic equals and will be so postdivorce. The majority opinion, in bypassing entirely the relative economic status of the parties and going straight into a consideration of fault, represents a groundbreaking departure from years of well-established precedent in Tennessee divorce law. I would reverse the trial court’s award of attorney’s fees because Wife, as found by the trial court and not disputed by the majority, is not an economically disadvantaged spouse. Tennessee law does not permit us to skip that initial part of the analysis simply to punish a wayward spouse with a large attorney’s fee bill for causing the divorce.
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Time and time again, courts have emphasized the necessity of weighing the relative economic status of the parties in a divorce before making an award of alimony, including an award of attorney’s fees as alimony in solido. I’m aware of no legislative or judicial development in the interim that has changed that settled law. The majority’s position that an economically equal or, for that matter, even advantaged spouse may be awarded attorney’s fees as alimony in solido if the other spouse’s behavior was sufficiently objectionable flouts longstanding precedent and the applicable statutes.
[T]he initial question is whether one spouse is economically disadvantaged, and only if the answer is yes do you need next consider those statutory factors relied upon by the majority.
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A punitive approach to alimony is not in keeping with Tennessee law on spousal support, which starts with the question of whether either spouse is an economically disadvantaged spouse. If and only if Wife is economically disadvantaged does Wife’s need and Husband’s ability to pay become the most significant factors.
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I believe the trial court’s finding that neither party is economically disadvantaged relative to the other postdivorce ends this analysis and requires a reversal of the trial court’s award to Wife of alimony in solido for attorney’s fees. I think it is equally as clear that Wife’s needs and Husband’s ability to pay do not justify an award of alimony in solido in this case . . . . First, Wife has no need as Wife apparently does not owe the attorney’s fees as her parents paid them. Simply put, no debt no need. As to Husband’s ability to pay, it is puzzling to me how the majority can find . . . that “Wife did not have the resources to pay her attorney’s fees” and yet find “that Husband had the resources to pay the modest amount of $370 per month.” How can it be that these parties’ being in the same postdivorce economic status results in Wife’s being unable to pay her attorney’s fees, if she actually owed such a debt, while at the same time Husband can easily pay it? This is a logically inconsistent determination by both the majority and the trial court.
The majority’s decision gives free rein to trial courts to ignore both the statutes and case law requiring a finding that a spouse is economically disadvantaged relative to the other spouse before awarding alimony, including alimony in solido.  Applying the majority’s opinion as to alimony, a trial court no longer will be bound by alimony statutes and case law on those statutes but instead can just look at the “equities” to make its decision.
K.O.’s Comment: Judge Swiney reaches the right result, but his analysis fails to address what it means to be “economically disadvantaged.”
The dissent suggests being economically disadvantaged merely requires a disparity in what Judge Swiney calls the “parties’ relative economic status.” That is not the case — being financially worse off than one’s spouse does not make one economically disadvantaged under Tennessee law.
The majority’s rationale misses the point — one doesn’t get alimony simply because the other party is at fault for the demise of the marriage. The alimony recipient must be economically disadvantaged. The majority speaks to the “equities” from analyzing the statutory factors but doesn’t address the trial court’s failure to find that Wife is economically disadvantaged. As the dissent points out, this is a threshold finding required before the Court can even consider the statutory factors.
I urge the Tennessee Supreme Court to review this case because the concept of “economically disadvantaged” is commonly misunderstood by lawyers and judges. This case presents the Supreme Court with the perfect opportunity to provide clarity.
Since neither the majority nor the dissenting opinions address what it means to be “economically disadvantaged” for alimony, I will.
“Economically disadvantaged” is a legal term of art. Its meaning is reflected in Tennessee Code Annotated § 36-5-121(c)(1):
Spouses have traditionally strengthened the family unit through private arrangements whereby one (1) spouse focuses on nurturing the personal side of the marriage, including the care and nurturing of the children, while the other spouse focuses primarily on building the economic strength of the family unit. This arrangement often results in economic detriment to the spouse who subordinated such spouse’s own personal career for the benefit of the marriage.
Tennessee Code Annotated § 36-5-121(c)(2) further describes the “economically disadvantaged spouse” as one who “suffers economic detriment for the benefit of the marriage.”
Several Tennessee cases describe this as subordinating one’s career to benefit the marriage or family as a homemaker or parent.
Economic disadvantage requires more than merely reviewing the “parties’ relative economic status,” as Judge Swiney suggests. It also requires causation.
The spouse’s decreased earning capacity must be because of some benefit that was conferred on the marriage or family.
And if a spouse is not found to be “economically disadvantaged,” as the Court explained in Tait v. Tait, then “that spouse is not entitled to support and [the court’s] inquiry goes no further.”