Facts: The parties divorced after 19 years of marriage. Husband was ordered to pay Wife $1000 per month in transitional alimony that would terminate in 11 years when Wife when Wife reached 59 ½ years of age.

Four years later, Husband petitioned to terminate his alimony obligation, alleging that Wife cohabitated with her father.

Wife testified that her father’s ranch consisted of two dwellings—a modular home where her father and stepmother lived and a second dwelling that lacked electricity and required cooking on a wood stove and using candles for light.

Wife testified she was no longer living in the second dwelling on her father’s property.

The trial court found that Wife spent extensive time at the modular home where her parents lived and that she contributed money for some of their bills. Ultimately, the trial court determined that Wife cohabitates with a third person and lacks the need for transitional alimony. Thus, Husband’s alimony payments were terminated, and Wife was ordered to repay the 11 payments she received while Husband’s petition was pending.

Wife appealed.

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

Transitional alimony aids a spouse who already has the capacity for self-sufficiency but needs financial help while adjusting to a single-income household. It is sometimes described as short-term “bridge-the-gap” support designed to smooth a spouse’s transition from married to single life.

Tennessee law states that transitional alimony is nonmodifiable unless the alimony recipient lives with a third person, in which case a rebuttable presumption is created that the alimony recipient no longer needs the amount of support awarded because (A) a third person is contributing to the support of the alimony recipient, or (B) the third person is receiving support from the alimony recipient.

The relationship a party has with a cohabitating third person is irrelevant. Cohabitation need not involve a paramour.

The living situation at the time of trial determines whether the cohabitation statute applies.

The Court found reversible error on these facts:

Wife was the sole witness who testified at trial. Wife acknowledged that she had initially resided with her parents for approximately a month after relocating….

By the time of trial, however, Wife testified that she had purchased a home located “two minutes” from [her father’s property]. Wife indicated that this residence was fully habitable and included functional plumbing and electricity…. Wife also stated that she no longer paid her parents’ utility bills.

The [trial] court concluded that Wife “cohabitates with her father and stepmother.” The court’s use of “cohabitates” rather than “cohabitated” indicates an apparent conclusion that Wife was cohabitating with her parents at the time of trial….

Accordingly, it appears that the trial court only considered Wife’s residential circumstances as they existed upon her initial relocation … when determining whether cohabitation had occurred….

We note, however, that before undertaking an analysis of Wife’s ongoing need for spousal support, the trial court was required to determine that Wife was cohabitating with a third party at the time of trial. Although the trial court purported to assess cohabitation at the time of trial in its order, the court appeared to disregard Wife’s testimony regarding her purchase of a separate residence four months prior to trial when analyzing whether the cohabitation with her parents was ongoing. We reiterate that Wife was the only witness who testified at trial and her testimony concerning her current living situation was unrebutted….

The trial court made no explicit credibility findings concerning Wife’s testimony. Moreover, the trial court appeared to accept Wife’s testimony concerning the purchase of a separate residence when analyzing her need for ongoing alimony.

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In this cause, the trial court’s findings do not address whether the court found that Wife’s change in living situation prior to trial was genuine or a “subterfuge.” Although the trial court appeared to credit Wife’s testimony concerning the purchase of a new residence when analyzing her lack of need, we are unable to construe the court’s lack of discussion of this fact when addressing cohabitation. Ergo, we conclude that the trial court’s findings concerning whether Wife was cohabitating at the time of trial are incomplete, necessitating vacation of the court’s order and remand for additional findings concerning Wife’s living situation at the time of trial. We note that if, upon remand, the court determines that Wife cohabitated with her parents for a period of time but such cohabitation had ceased by the time of trial, Husband could be entitled to a temporary suspension of all or part of the alimony payments during the period between his petition’s filing and the cessation of cohabitation.

The Court reversed the trial court’s judgment and remanded the case for more findings.

K.O.’s Comment: Should Wife have challenged the trial court’s award of 11 years of transitional alimony instead of alimony in futuro? In Lunn, the Court noted it had affirmed transitional alimony for eight years at most. If the economically disadvantaged spouse’s need persists after eight years, the alimony is no longer “transitional” such that alimony in futuro is appropriate.

Source: Davalos v. Dale (Tennessee Court of Appeals, Eastern Section, September 1, 2023).

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