Cohabitation Results in Modification of Alimony in Chattanooga, Tennessee: Winne v. Winne

FactsWhen Husband and Wife divorced, they entered into a marital dissolution agreement that required Husband to pay Wife $2200 per month as spousal support. The marital dissolution agreement said:

Husband will pay to Wife the sum of $2200 per month as periodic alimony until the first of the following events: (a) the death of either party; (b) the remarriage of Wife; or (c) seven years.

After their divorce, Wife dated Boyfriend. Two years later, Wife sold her home and moved into Boyfriend’s home. Shortly thereafter, Wife and Boyfriend purchased a home for $490,000. They jointly owned the home and the mortgage.

Tennessee alimony modificationHusband petitioned to modify alimony because Wife’s cohabitation created a statutory presumption that she no longer needed alimony because she was receiving support from or supporting a third party, i.e., Boyfriend.

Wife testified that she and Boyfriend equally shared their living expenses. Because she only earned $10 an hour as a substitute teacher, she claimed she still needed the full amount of alimony.

After a trial, the trial court found that Wife had not rebutted the statutory presumption. The trial court also questioned Wife’s credibility. Husband’s alimony obligation was reduced by $1312.50, i.e., from $2200.00 to $887.50 per month.

Both parties raised issues on appeal.

On AppealThe Court of Appeals affirmed the trial court.

Wife argued the marital dissolution agreement prevented the court from modifying alimony.

A marital dissolution agreement is a contract. Once incorporated into a divorce judgment, issues governed by statutes, such as child support and alimony, lose their contractual nature and become a judgment of the court. Tennessee courts retain the statutory authority to modify alimony awards when appropriate.

The Court found the marital dissolution agreement did not prohibit modification of alimony:

Wife concedes that the type of alimony awarded is alimony in futuro. Awards of alimony in futuro are modifiable. [T]he alimony statute specifically authorizes a court to modify an award of alimony in futuro when the alimony recipient lives with a third person. But Wife maintains that the parties contracted to forgo this basis for modification by intentionally leaving cohabitation off the list of events that would terminate alimony. We disagree.

The MDA does not address modification of alimony. The parties only specified when Husband’s alimony obligation would terminate. . . . The failure to include cohabitation in the list of events that terminate alimony does not evidence an intent to preclude modification of the award as authorized in the alimony statute.

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The trial court did not err in considering Husband’s petition to modify alimony. The type of alimony awarded, alimony in futuro, was modifiable. And both the MDA and the final divorce decree are silent on modification. Silence does not preclude modification.

Husband argued the trial court erred by failing to terminate his alimony obligation in its entirety.

An award of alimony in futuro remains in the court’s control for the duration of the award and may be increased, decreased, terminated, extended, or otherwise modified upon showing a substantial and material change in circumstances.

If the changed circumstance is the cohabitation of the alimony recipient with a third party, Tennessee Code Annotated § 36-5-121(f)(2)(B) creates a rebuttable presumption that the recipient no longer needs the alimony because the recipient is either supporting or receiving support from the third party. This presumption shifts the burden of proof to the recipient to show the continuing need for the full alimony award.

The Court found the evidence supports the trial court’s decision to reduce but not terminate Wife’s alimony award:

Our courts have frequently held that an alimony recipient has rebutted the presumption by demonstrating continuing need, despite living with a third person and either receiving support from, or providing support to, the third person. The only changed circumstance here is Wife’s cohabitation with [Boyfriend]. Her income remained the same. Although Wife claimed her expenses also remained stable, the trial court did not agree. In light of the court’s credibility assessment, we cannot say that the evidence preponderates against the court’s finding that Wife failed to demonstrate she needed the full amount of alimony and that her need was reduced by $1312.50.

The trial court’s judgment was affirmed.

Winne v. Winne (Tennessee Court of Appeals, Eastern Section, October 30, 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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