Facts: Husband and Wife, the parents of two children, divorced after 17 years of marriage.

Husband is an emergency room physician who earns over $31,000 a month.

Wife is a family-law attorney after being a stay-at-home parent for many years. The trial court found her earning capacity to be $4000 a month.

Alimony was a significant issue at trial.

Wife sought alimony in futuro of $8000 a month.

Husband argued that transitional alimony of $1431 a month for four years would meet Wife’s needs and fit within his ability to pay.

As for Husband’s ability to pay, the opinion adds:

During the pendency of the divorce, Husband spent significant amounts of marital funds supporting his new girlfriend, a full-time college student with two children of her own. He paid her rent, her cell phone bills, and her car payment. He also bought her numerous gifts and loaned money to her parents. Eight months before trial, Husband’s girlfriend moved into his home. Husband explained this living arrangement was designed to save him money. One household was cheaper than two.

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Husband’s expense projections had grown during the course of the litigation. Cross-examination exposed multiple flaws in his calculations. Some of his numbers were inflated; other payments were voluntary. Despite his claims to the contrary, Wife established that Husband had a significant amount of disposable income. During the pendency of the divorce, he spent $27,000 on home renovations, $3745 on alcohol, and over $2000 on tattoos [for him and his girlfriend]. And Wife documented an additional $8000 that Husband had paid to or on behalf of his girlfriend and her family.

The trial court ordered Husband to pay Wife $3500 per month as alimony in futuro. Wife was also awarded her attorney’s fees.

Husband appealed.

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

Alimony decisions are fact-driven and involve the careful balancing of the factors in Tennessee Code Annotated § 36-5-121(i), especially the economically disadvantaged spouse’s need and the obligor spouse’s ability to pay.

Alimony in futuro is awarded when one spouse is economically disadvantaged and that spouse’s earning capacity may only be partially rehabilitated or rehabilitation is not feasible.

Rehabilitation is not feasible if the disadvantaged spouse cannot achieve, with reasonable effort, an earning capacity that will permit that 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.

Transitional alimony is appropriate when the court finds that rehabilitation of the economically disadvantaged spouse’s earning capacity is unnecessary but that spouse still needs financial assistance in adjusting to the economic consequences of divorce. It is designed to help a spouse who has the capacity for self-sufficiency but needs temporary assistance to adjust to the economic reality of one income.

The Court found alimony in futuro appropriate:

Husband points out that Wife is a highly qualified attorney with several years of experience in her field. As such, she has the skills and ability to grow her practice and support herself. But there is no evidence that Wife’s income as a family-law attorney will ever enable her to achieve a standard of living after the divorce reasonably comparable to the postdivorce standard of living expected to be available to Husband. Wife spent the vast majority of this marriage supporting Husband in his career, not pursuing her own. She has made commendable progress growing her practice since the parties’ separation. Still, Husband earns nine times what Wife is expected to earn.

The trial court’s award was not based solely on the economic disparity between the spouses. Other statutory factors also supported an award of alimony in futuro, including the duration of the marriage and fault. The court found Husband was at fault in the demise of this long-term marriage. He physically and verbally abused Wife. The court also found that Husband dissipated marital funds during the pendency of this divorce through payments to and for the benefit of his new girlfriend and her family. The evidence does not preponderate against these factual findings.

In the end, the most important considerations in determining spousal support are the disadvantaged spouse’s need and the obligor spouse’s ability to pay. Husband claims that he lacks the ability to pay the amount awarded. While Husband’s debt burden is significant, so is his income. Husband was primarily responsible for most of the marital debt during the pendency of this divorce. And yet, these obligations had little discernible impact on his spending habits. After carefully considering the evidence in this record, we cannot say that the evidence preponderates against the court’s finding that Husband has the ability to pay $3500 a month in spousal support.

The trial court’s judgment was affirmed in its entirety. Wife was also awarded her attorney’s fees on appeal.

K.O.’s Comment: I represented Wife at trial and on appeal.

This case presents a cautionary tale for family-law attorneys and divorcing parties.

Wife offered Husband the opportunity to pay transitional alimony at mediation, but he rejected that compromise offer.

By the time we made it to trial, Husband argued for the same type of alimony he rejected at mediation. In other words, Husband’s best outcome at trial became the very outcome he walked away from at mediation.

He ended up with a much worse outcome plus a judgment for Wife’s attorney’s fees at trial and now on appeal.

That’s a hard pill to swallow after having the opportunity to resolve the case on much more favorable terms.

Mediation presents both parties an opportunity to avoid the risk and expense of trial while resolving the case on terms each party can live with.

Husband probably wishes he could go back in time and accept that offer at mediation. Walking away from that offer turned out to be an expensive mistake. We can all learn from it.

Lee v. Lee (Tennessee Court of Appeals, Eastern Section, January 28, 2021).

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