Facts: When Husband and Wife divorced, their marital dissolution agreement stated that Husband would pay 50% of his gross income to Wife as alimony in futuro “until either party is deceased.”

Four years later, Husband petitioned to change his alimony obligation because he retired at age 62 and is no longer employed, his income is now limited to Social Security benefits, and Wife’s need for alimony has gone down since the divorce.

Husband’s annual income declined from $160,000 to $24,000. Husband’s new wife pays their household bills largely through her income. After his expenses—including his alimony obligation—are paid, Husband has $590 left over each month.

Wife’s monthly income exceeds her expenses by $830.

The trial court found Husband’s retirement was objectively reasonable and that a substantial and material change in circumstances had taken place. Even so, the trial court denied Husband’s request for modification based on his ability to pay and Wife’s need.

Husband appealed.

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

An award of alimony in futuro remains in the court’s control for the duration of the award and may be increased, decreased, terminated, extended, or otherwise modified upon showing a substantial and material change in circumstances.

A change is material if it occurred after the entry of the last alimony order and was unanticipated at the time of that order.

A change is substantial if it significantly affects either the obligor’s ability to pay or the obligee’s need for support.

Proving a substantial and material change is merely the first hurdle. The party requesting modification must also show that modification is justified. In this second step of the modification analysis, Tennessee courts are guided by the statutory factors in Tennessee Code Annotated § 36-5-121(i). The two most important factors are need and ability to pay. In a modification proceeding, the recipient’s need is not the court’s primary concern. The ability of the obligor to provide support must be given at least equal consideration.

The Court found error on several counts:

[Husband] retired, and his income went from roughly $160,000 per year to around $24,000 per year in Social Security benefits. While [Husband’s] alimony obligation decreased automatically alongside his reduction in income, the automatic nature of the alimony does not render it immune to further modification. As a matter of common sense, 50% of $160,000 is significantly different than 50% of $24,000. … [Husband’s] objectively reasonable retirement, accompanied as it was by an enormous drop in his income, constituted a substantial and material change in circumstances….

While the trial court found a substantial and material change, it nevertheless declined to modify [Husband’s] alimony obligation. In so doing, the trial court heavily scrutinized [Husband’s] expenses. It did not account for all of [Husband’s] food expenses. This constituted error, as [Husband] has to eat. While the trial court rejected [Husband’s] claim to per diem expenses, arriving at zero dollars for food was unreasonable. [Wife] asserts that many of [Husband’s] claimed expenses were mere estimates, but she fails to explain why an estimate need necessarily be rejected out of hand…. In addition, the trial court concluded that [Husband] has some $590 per month left over after alimony but that if his housing expenses were similar to [Wife’s] he would run a shortfall of $250 per month even without including any amounts for food. On the other hand, the trial court accepted [Wife’s] affidavit of expenses at face value. This is concerning because [Husband] testified to his expenses while [Wife] did not, although both parties submitted affidavits of expenses. In effect, [Husband] was penalized for testifying. The trial court did not adequately consider [Husband’s] expenses and left him to carry on paying half of his relatively meager Social Security benefits to [Wife] as though nothing had changed in the matter, even after correctly finding a substantial and material change in circumstances. Respectfully, this is an illogical result and one not supported by the evidence, not based on the most appropriate legal principles, and not within the range of acceptable alternative dispositions.

A trial court’s decision on a petition to modify alimony is entitled to deference. We may not second-guess or tweak a trial court’s discretionary decision just because we might have ruled differently. Here, however, the trial court failed to apply the most appropriate legal principles applicable to the decision at hand. In particular, it did not heed that the “ability of the obligor to provide support must be given at least equal consideration.” In addition, the factual basis for the trial court’s decision is not properly supported by the evidence in the record. Indeed, the trial court’s own findings tend to undermine its ultimate decision to deny [Husband’s] modification request. [Husband] is retired now, and the sole source of his income is around $2100 per month in Social Security benefits. Despite this, the trial court’s decision leaves [Husband] in the position of paying half of his meager Social Security income to [Wife] even though he would run a deficit if his expenses were even minimally accounted for.

*     *     *     *     *

The trial court did not fully reckon with [Husband’s] expenses or his ability to pay. It instead placed undue emphasis on the fact that [Husband’s] wife supports him—support which, in theory at least, could be withdrawn at any time. In contrast, the trial court accepted [Wife’s] expenses at face value. The trial court’s decision ignores the impact of [Husband’s] huge drop in income and even a minimal measure of his expenses on his ability to pay [Wife] 50% of his income as he did pre-retirement. It also gives no consideration to the trial court’s findings that [Wife] “has as much as $830.35 per month available to her beyond her current need.” In that regard, the trial court’s decision caused an injustice to [Husband] and does not fall within the range of acceptable alternative dispositions. We therefore find that the trial court abused its discretion in denying [Husband’s] modification petition.

The Court reversed the trial court’s denial of Husband’s requested alimony modification and remanded the case to the trial court to modify Husband’s alimony obligation.

K.O.’s Comment: (1) The opinion notes that Husband testified about his claimed expenses while Wife did not and criticizes the trial court for accepting Wife’s expenses “at face value.” It seems unfair to blame the trial court for accepting evidence at face value when neither lawyer questioned Wife about her claimed expenses. If a party’s affidavit is admitted into evidence and no lawyer questions it, how can a trial court be faulted for accepting the evidence at face value? Do we want trial judges acting in the role of a judge or a lawyer?

(2) When the opinion concludes by stating the trial court abused its discretion, it includes a footnote with this text: “The term ‘abused its discretion’ has a specific meaning as set out in this Opinion in this legal setting. It does not have the meaning that is likely to be called to mind by a nonlawyer in a nonlegal setting.” Most opinions reversing a trial court’s decision conclude the trial court abused its discretion, yet this is the first opinion I’ve seen with this footnote. Why?

Source: Covarrubias v. Baker (Tennessee Court of Appeals, Eastern Section, November 8, 2023).

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