Facts: The parties divorced after 27 years of marriage.

In opening statements, Wife’s counsel requested alimony in futuro of $15,000 a month. Husband’s counsel agreed “it is an alimony in futuro case” but asked the court to award a lower amount of $7000 a month. Husband also testified that he thought it appropriate that Wife receives alimony in futuro of $7000 per month. Likewise, in Husband’s proposed findings of fact and conclusions of law submitted after the trial, he proposed that Wife be awarded alimony in futuro of some amount.

The trial court entered a detailed 65-page memorandum and order in which it declined to award Wife alimony in futuro. Instead, Wife was awarded transitional alimony for nine years: $7000 per month for the first three years, then $5000 per month for the next three years, and $3000 per month for the final three years. While noting Husband’s concessions about alimony, the trial court concluded that it must make an independent determination of what type of alimony is appropriate.

Regarding the award of transitional alimony, the trial court found:

Wife is not uniquely disadvantaged to the point she is dependent upon Husband for her future support. Similarly, Wife does not require rehabilitation by way of education, or training to enable her to reenter the workforce. Wife has demonstrated an entrepreneurial spirit and a commendable work ethic.

Still, the trial court found that Wife had a need of $7000 per month, and Husband could pay it.

Wife appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Stipulation. Wife first argued that the parties stipulated she could have alimony in futuro. Husband argued there was no stipulation. Instead, he said the suggestion of an alimony in futuro award was made in the context and contingent upon Wife’s share of the marital estate being reduced.

A stipulation is an agreement regarding business before the court entered into voluntarily by the parties. While parties may not stipulate to questions of law, stipulations within the range of possibly true facts and valid legal strategies are allowed. Notably, an open court concession by the attorneys constitutes a binding stipulation.

The Court found there was no stipulation:

[W]e agree with Husband that no stipulation was reached regarding the nature of the alimony that Wife would receive. . . . Neither Husband nor his counsel mentioned the terms “stipulate,” “stipulating,” or “stipulation” in connection with their statements regarding alimony.

Also, the statements made in counsel’s opening that “Husband agrees it is an alimony in futuro case” and that Husband was “asking the court to award Wife alimony in the amount of $7000 a month” must be understood in context. We interpret counsel’s statements as a concession that alimony in futuro would be appropriate if the court adopted Husband’s other positions, some of which the court ultimately rejected. We interpret Husband’s testimony concerning alimony similarly.

Transitional alimony. Wife then argued it was error to award transitional alimony instead of alimony in futuro.

Transitional alimony is appropriate if the court finds one spouse is economically disadvantaged and needs financial assistance in adjusting to the economic consequences of divorce, but rehabilitation is unnecessary. This alimony aids a spouse who already possesses the capacity for self-sufficiency but needs temporary financial assistance to adjust to the economic reality of one income.

Alimony in futuro provides support long-term until the death or remarriage of the recipient. This long-term support is awarded when one spouse is relatively economically disadvantaged and may be only partially rehabilitated or rehabilitation is not feasible.

Citing the trial court’s findings that Wife is “not uniquely disadvantaged to the point she is dependent upon Husband for her future support,” the Court held it was not an abuse of discretion to award transitional alimony.

The Court of Appeals affirmed the trial court’s judgment.

K.O.’s Comment: In a footnote, the Court notes that “[a]lthough nine years is a long time to award a form of short-term support” like transitional alimony, the nine-year duration does not make it necessary to modify the type of alimony.

How does one square this with the Court’s statement in Lunn v. Lunn that it “has affirmed an award of transitional alimony for a period of eight years at most”? Or Lubell v. Lubell where transitional alimony of 10 years was converted to alimony in futuro because of its duration? Or Roby v. Roby where transitional alimony of 12 years was converted to alimony in futuro because of its duration?

Knizley v. Knizley (Tennessee Court of Appeals, Middle Section, November 27, 2019).