Alimony Based on Speculative Income Reviewed in Franklin, Tennessee Divorce: Diffie v. Diffie

FactsA five-day trial ended my 15-year marriage.

That sounds like the beginning of a country song.

Husband is a 58-year-old, Grammy award-winning country music singer and songwriter. He earns approximately $1.7 million a year from touring.

Wife is a 48-year-old former payroll clerk who’d been a stay-at-home mother to their teenage child throughout the marriage. After the parties separated, Wife worked part-time at a bookstore earning minimum wage. She has rheumatoid arthritis.

And yes, a five-day trial ended their 15-year marriage.

Tennessee divorce alimony

The marriage broke down after Husband admitted to numerous extramarital affairs and dissipating marital funds to further those affairs.

The trial court divided the marital property 60% to Wife and 40% to Husband. Wife was also awarded rehabilitative alimony, transitional alimony, alimony in futuro, and alimony in solido.

Husband appealed.

On AppealThe Court of Appeals affirmed in part and reversed in part.

Rehabilitative alimony. Husband argued the trial court erred by awarding transitional alimony and rehabilitative alimony.

Notably, Wife never requested rehabilitative alimony. Her attorney specifically argued she could not be rehabilitated, meaning that her earning capacity could not, with reasonable effort, be increased to allow her to enjoy a postdivorce standard of living reasonably comparable to that available to Husband.

Because transitional alimony is only appropriate when a court finds that rehabilitation is unnecessary, the Court agreed that Wife may not receive transitional alimony and rehabilitative alimony. The award of rehabilitative alimony was reversed.

Amount of alimony. Husband argued Wife received too much alimony. Wife argued she did not receive enough.

The proof showed Wife had an undisputed need of $7500 per month. She was awarded alimony in futuro of at least $2000 but not more than $3000 a month.

As to Husband’s ability to pay, the trial court found:

At some unknowable point in the future, Husband will no longer be able to endure the rigors of live performance tours. The Court must take into account this ebb in Husband’s ability to generate revenue and not set alimony in futuro at a level greater than Husband’s predictable ability to sustain payment of such support.

The Court found error in the consideration of “speculative income”:

Considering what might happen to Husband’s income at some unknowable point in the future conflicts with the legal principle that an award of alimony must be based on the factors known the time of the hearing. . . . [T]he trial court erred by basing Husband’s present ability to pay alimony on what might happen at “some unknowable point in the future.”

By considering that Husband would have less income in the future, the trial court artificially deflated Husband’s present ability to pay alimony. . . .

Therefore, we reverse the amount of the awards for alimony in futuro and transitional alimony and remand to the trial court . . . to determine, among other relevant factors, Wife’s need and Husband’s ability to pay based upon the [evidence] known at the time of the hearing.

Punitive alimony. Husband argued the unequal division of marital property coupled with an award of all four types of alimony proves the trial court sought to punish Husband for his actions during the marriage.

While fault should not be applied punitively when determining spousal support, the Court explained:

[T]he trial court noted that Husband betrayed his marital obligations through sexual pursuit of other women. . . . [T]he record fully supports these findings of fact. . . . [W]e have determined that the trial court erred in Husband’s favor by setting alimony based on the speculation that Husband’s income would diminish in the future. This is not consistent with the allegation that the trial court’s awards were motivated by the intent to punish Husband.

The trial court’s judgment was affirmed in part and reversed in part. Wife was also awarded her attorney’s fees on appeal.

K.O.’s Comment: This opinion was written by World’s Most Awesome Judge recipient Frank Clement Jr., the author of the classic hole-in-the-bucket opinion. Here, he tries to repeat by quoting a line from one of Husband’s songs, John Deere Green.

The parties began dating immediately and, to quote songwriter Dennis Linde, “Everyone knew it was love from the start.”

When I saw that early in the opinion, I had high hopes this opinion might make Judge Clement a two-time award winner.

Sadly, it was not to be.

Considering Husband’s argument on appeal that Wife received too much alimony, another option from one of Husband’s songs might’ve been, “If the Devil danced in empty pockets, he’d have a ball in mine.”

Diffie v. Diffie (Tennessee Court of Appeals, Middle Section, April 23, 2019).

Posted by

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.

Leave a Comment