Facts: When Husband and Wife divorced, their marital dissolution agreement required Husband to pay transitional alimony to Wife of $2000 per month for 48 months. It specified the alimony was nonmodifiable “except it terminates upon Wife’s death or remarriage, or may be modified pursuant to the statute upon Wife’s cohabitation with a romantic partner.”

Two weeks after Wife received her first alimony payment, Boyfriend moved into her apartment. He was added to the lease as a cotenant and paid half of the rent and utilities each month.

Husband promptly petitioned to modify the alimony because of Wife’s cohabitation.

Wife proved she and Boyfriend equally divided the household expenses.

The trial court found that Wife did not rebut the presumptions that she was receiving support from or supporting Boyfriend and that she no longer needed the alimony because of the cohabitation. Thus, the trial court suspended Wife’s transitional alimony retroactive to the date Husband filed his petition.

Wife appealed.

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

Tennessee Code Annotated § 36-5-121(g)(2)(C) provides that transitional alimony is not modifiable unless the alimony recipient cohabitates with a third person, in which case a rebuttable presumption arises that the alimony recipient no longer needs the previously awarded amount of alimony because the recipient is supporting or receiving support from the third person.

Once the presumption has been raised, the burden of proof shifts to the alimony recipient to prove a continuing need for the full alimony award despite the cohabitation.

To decide whether an alimony recipient has successfully rebutted the presumption, the court must consider whether the alimony recipient has contributed to or received support from the third person and whether the alimony recipient showed their continuing need for transitional alimony.

When deciding whether the alimony recipient has a continuing need for the full amount of the previously awarded alimony, the court must examine the financial circumstances of the alimony recipient at the time of the modification hearing. Alimony recipients can rebut the presumption by showing a deficit of funds despite the third party’s support or cohabitation.

The Court affirmed the trial court’s finding that Wife rebutted the presumption she was neither supporting nor receiving support from Boyfriend based on the evidence that they equally shared the household expenses.

But the Court faulted the trial court for concluding that Wife no longer needed alimony:

[A]t the time of the modification hearing, Wife remained unemployed. Her only sources of income were $2000 per month in alimony and $1831 per month in child support, for a total monthly income of $3831. Wife still lived in the same apartment she had lived in at the time of the divorce, but she shared the cost of rent, utilities, and other household expenses equally with [Boyfriend]. We agree with the trial court’s finding that “[t]his arrangement allow[ed] each of them to obtain housing accommodations at half the cost they would otherwise incur but Wife’s income and expense statement shows that, despite this arrangement, she still paid $1513.50 each month toward these expenses. Her income and expense statement further shows that Wife has approximately $3941.75 in monthly general living expenses…. Thus, despite “obtaining housing accommodations at half the cost,” Wife still had monthly expenses totaling $5455.25. Even receiving the full amount of alimony, Wife has a monthly deficit of $1524.25. The trial court acknowledged this deficit finding that, “in order to make up the difference between her income and expenses, Wife has been consuming cash distributed to her in the division of marital property.”

Notwithstanding this finding, the court concluded that Wife failed to rebut the presumption that she no longer needed the previously awarded amount of alimony. The trial court made its decision by heavily relying on its finding that, “[a]lthough she is trained and qualified to earn income as a massage therapist, Wife chooses to be unemployed.” The record does not support this finding, however. Wife testified that, prior to the marriage, she had trained as a massage therapist and had held licensure for massage therapy in Texas. She has never held a massage therapy license in Tennessee, and she stated that she has not been formally employed in that field or any other since 2006. As Wife points out in her appellate brief, “[i]t is not logical to believe Wife [is] presently able to obtain employment in the field she has not practiced for nearly 15 years, in a state where she is not licensed, during a pandemic with soaring unemployment in service-based industries with restrictions on in-person activities.”

Lastly, the trial court found that Wife no longer needed alimony because she was no longer transitioning to the status of a single person due to her “living in a domestic partnership” with [Boyfriend]…. [T]he record shows that Wife and [Boyfriend] were very intentional in how they paid their shared expenses in order to avoid commingling their finances. Therefore, the nature of Wife’s relationship with [Boyfriend] had no bearing on whether she continued to need the alimony previously awarded.

The Court found that Wife rebutted the statutory presumption by proving her continuing need for the previously awarded alimony. Under the circumstances, the trial court abused its discretion in suspending the alimony award. The trial court’s judgment was reversed.

Strickland v. Strickland (Tennessee Court of Appeals, Middle Section, November 16, 2021).

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