Facts: Husband and Wife divorced after 16 years of marriage.

Husband was in the military for 9 ½ years of the marriage and later retired after 26 years of service.

They agreed to the equitable division of marital property at mediation. They proceeded to trial on alimony.

Husband admitted to three extramarital affairs. The trial court found that “Husband’s actions caused the demise of this marriage.”

At age 50, Husband had a college degree and a long history of military service, which entitled him to health insurance, retirement benefits, and income of over $9000 per month.

At 49, Wife had no college degree and earned less than $4500 per month with no benefits.

The trial court found Husband had an earning potential greater than Wife, and Wife was the economically disadvantaged spouse.

The trial court found it would cost Wife $1100 a month to buy health insurance comparable to that available to Husband at no cost.

After finding that Wife needs alimony to help her purchase comparable health insurance and noting that Husband was at fault for the marriage’s demise, the trial court ordered Husband to pay $700 per month of alimony in futuro to assist Wife in purchasing health insurance.

Husband appealed.

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

Husband argued the trial court used alimony to punish him for his infidelity.

Alimony in futuro is awarded to provide long-term spousal support and continues until the recipient’s death or remarriage.

Alimony in futuro is appropriate when the economically disadvantaged spouse cannot achieve, with reasonable effort, an earning capacity that will permit the spouse’s standard of living after the divorce to be reasonably comparable to the postdivorce standard of living expected to be available to the other spouse.

Whether to award spousal support and, if so, the type and amount of the award are determined by evaluating the factors found at Tennessee Code Annotated § 36-5-121(i).

The Court found no error in the trial court’s judgment:

Husband further argues that, in failing to consider Wife’s frivolous expenses in awarding alimony in futuro, the trial court attempted “to assist Wife in maintaining a lifestyle that she wanted but did not need.” We disagree with Husband’s characterization of the trial court’s decision. The [trial] court awarded Wife $700 per month to pay for health insurance, a need, not a want.

While Husband’s infidelity factored into the trial court’s decision, it is clear the [trial] court’s objective in awarding alimony in futuro was not to punish Husband for his actions but to assist Wife in achieving a postdivorce standard of living comparable to Husband’s—the stated purpose of alimony in futuro.

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[T]he trial court may consider fault under § 36-5-121(i)(11), though the primary focus must be the spouse’s need for such support. In addition to establishing Wife’s need, the testimony also established Wife did not want the divorce and was willing to forgive Husband for his infidelity, but Husband refused to attend counseling at Wife’s request.

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[T]he trial court considered the relevant factors found in § 36-5-121(i), made factual findings supported by the testimony and other evidence in the record, and reached a decision within the range of acceptable dispositions. Accordingly, we affirm the trial court’s decision to award Wife $700 per month in alimony in futuro to assist her in paying for health insurance.

The Court affirmed the trial court’s decision in its entirety.

K.O.’s Comment: The Court cites the 2-1 Olinger opinion for the proposition that alimony for attorney’s fees is appropriate because “had a husband not ‘strayed,’ there would probably not have been a divorce and no attorney’s fees to be paid in the first place.”

I was critical of the reasoning in Olinger, which you can read here, and view it as a stark departure from the well-settled law in Tennessee. I regret seeing it cited in other cases.

Wiggins v. Wiggins (Tennessee Court of Appeals, Middle Section, January 22, 2021).

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