Facts: This is the second appeal in this case. I covered the first appeal here.

The parties, both 60 years old, divorced after 35 years of marriage. Wife was a stay-at-home parent for most of the marriage, but she maintained her nursing license.

In the first appeal, the Court of Appeals ruled the trial court erred by failing to consider Wife’s earning capacity when assessing her need for alimony.

The case was remanded for reconsideration of Wife’s need in light of her earning capacity.

On remand, no additional proof was submitted. The trial court found Wife’s monthly need was $8000. Husband was ordered to pay alimony in futuro of $8000 a month. Again, the trial court failed to account for Wife’s earning capacity when assessing her need for alimony despite the Court of Appeals’ explicit instruction that it do so.

Husband appealed.

On Appeal: The Court of Appeals modified the trial court’s ruling.

Tennessee courts must consider 12 statutory factors when determining whether to award alimony. One factor includes “the relative earning capacity” of each party.

The Court held the trial court erred—again—by failing to consider the proof of Wife’s earning capacity:

[T]he trial court’s factual finding on remand, i.e., that “Wife’s return to the workplace and ability to earn income as a nurse at this stage in her life is not a realistic or feasible opportunity,” is inconsistent with the trial court’s original factual findings, i.e., that Wife could “reasonably re-enter the employment market” and “is capable of earning a reasonable income as a nurse based on her education, training, and background.” Because no new proof was offered on remand, these inconsistencies indicate that the trial court attempted to modify its prior findings without additional proof. This, it cannot do.

When a trial court finds that a disadvantaged spouse is capable of earning a reasonable income, a trial court must consider and adjust an alimony award accordingly. . . . [A] trial court errs when it fails to consider a disadvantaged spouse’s earning capacity . . . . Unfortunately, on remand, the trial court did not cure its initial failure to consider Wife’s earning capacity . . . . Accordingly, we will do so now. Again, no new evidence was adduced on remand. Wife’s expert testified that Wife could earn [] $2326 per month in income, and Husband’s expert testified that if Wife re-entered the employment market as a registered nurse, she could earn [] $4177 per month. In view of the totality of the circumstances, including Wife’s age, work experience, the number of years she has not worked outside the home, and the training she will need to re-enter the workforce, we conclude that Wife’s expert’s testimony is a truer representation of Wife’s relative earning capacity than the proof offered by Husband’s expert. Therefore, we adopt Wife’s expert’s opinion that Wife is capable of earning $2326 per month. We leave undisturbed the trial court’s finding that Wife has monthly need of $8000. Accordingly, the trial court’s order is modified to reflect an award of $5674 per month in alimony in futuro, i.e., Wife’s need of $8000 less her monthly earning capacity of $2326 per month.

Ellis v. Ellis (Tennessee Court of Appeals, Western Section, August 27, 2020).