Facts: When Husband and Wife divorced, their marital dissolution agreement required Husband to pay alimony in futuro of $1200 per month.

Seven years after their divorce, Husband petitioned to modify alimony because Wife lives with another man and obtains financial support from him.

The only witnesses at the hearing were Husband and Wife. The trial court made no findings of fact but concluded, “I believe Husband is entitled to some relief. I’m going to reduce his alimony to $600 a month.”

Wife appealed.

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

Although the trial court made no factual findings, the record had a complete transcript of the trial, so the Court did not remand the case for findings.

A party looking to modify alimony must initially prove a substantial and material change in circumstances. Tennessee Code Annotated § 36-5-121(f)(2)(B) creates a rebuttable presumption that an alimony recipient living with a third person is

• receiving financial support from the third person and no longer needs the amount of support awarded, or
• the third person is receiving financial support from the alimony recipient, and the alimony recipient no longer needs the amount of support awarded.

Here, Husband did not invoke the statute or argue that the presumption should be applied. He did not cite it on appeal. Thus, the Court limited its review to whether Husband proved a substantial and material change in circumstances. The Court concluded he did not:

The proof in the record is brief and consists only of the testimony of the parties….

The entirety of Husband’s proof regarding his allegation of Wife’s cohabitation with her boyfriend is as follows:

Q: And do you believe—you don’t know that he lived there or not at this point, do you?

A: No, but he was there when she was served.

*     *     *     *     *

Q: Have you seen any paramour stay the night with [Wife]?

A: I was never in her bedroom, so I have no idea, but Carlos’ vehicle has been there for years.

Wife explained her relationship and living arrangement as follows:

Q: When did your relationship end with Carlos?

A: Maybe more than, almost two years.

Q: And when Carlos is in the United States, where does he live?

A: He lives in the back of my [apartment]. I live in 102, and Carlos lives in the other apartment at the back of my apartment, 103.

*     *     *     *     *

Q: Has he ever resided with you?

A: No.

Q: Does he have, did he ever keep personal items at your home?

A: No.

Q: Did he ever spend consecutive nights at your home?

A: No.

Q: Does he, did he ever keep clothes at your home?

A: No. He has his own [apartment].

*     *     *     *     *

Q: You say you’re no longer in a relationship with Carlos; is that correct?

A: Yes.

Q: And that ended sometime after the filing of the petition to modify the alimony; is that right?

*     *     *     *     *

Q: And do you plan on this relationship resuming [when Carlos returns to the United States]?

A: No.

After the divorce, Wife filed for bankruptcy. She works at Walmart, earning $12 an hour at the time of the hearing. Wife testified that she is also in poor health and has struggled to pay her medical expenses. She stated that her standard of living is, and has been, lower than when she was married.

*     *     *     *     *

We hold that Husband did not meet his burden of proving a substantial and material change of circumstances that would warrant decreasing his alimony payments to Wife.

The Court reversed the trial court’s judgment.

Hoering v. Hoering (Tennessee Court of Appeals, Eastern Section, April 1, 2022).

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