Facts: Husband and Wife divorced after 27 years of marriage.

During the marriage, they started and managed their own construction company. Wife handled the administrative side of the business while Husband managed the jobsites. They shut the business down when they separated in 2015.

The trial court equally divided the marital estate and denied Wife’s request for alimony.

Wife appealed.

Wife argued the trial court erred by not awarding at least nominal alimony.

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

Nominal alimony is a type of alimony in futuro. It enables a court to keep jurisdiction to change the amount of alimony later if the circumstances justify it.

Nominal alimony may be appropriate when there is uncertainty about one party’s present or future finances, health, or earning capacity. This can occur when there is uncertainty regarding the future needs of the economically disadvantaged spouse or when the obligor spouse’s income potential has not been fully realized.

The Court found no error in the trial court’s ruling:

Here, Wife contends that nominal alimony is appropriate because Husband could start building homes again, at which point he would have the ability to pay alimony. To do so, Husband would need to reactivate his contractors license, hire employees, obtain insurance, pledge assets, and acquire empty lots to build on. Husband testified that he did not intend to come out of retirement, and the court found his testimony credible.

We discern no abuse of discretion in the denial of alimony to Wife. At trial, Wife and Husband were 58 and 61 years old, respectively. Both worked for [their construction company] for most of the marriage but largely retired after Wife filed for divorce. Except for the home built by [a separate company in which the parties had an interest], neither spouse worked during the pendency of the divorce. And they had similar monthly expenses and abilities to pay. Husband and Wife received an equal share of the marital estate. And the court found that Wife was more at fault for the breakdown of the marriage.

Finding no abuse of discretion, the Court affirmed the trial court’s judgment.

K.O.’s Comment: This case is also interesting because Wife fired her attorney after three days of trial. The trial court continued the case for several months so Wife could hire new counsel. One month before trial was set to resume, Wife asked for another continuance because, while she found an attorney willing to take her case, the attorney was not available until three months later. Wife’s continuance was denied, and she had to represent herself on the fourth and fifth days of trial. On the fifth day, Wife suffered a panic attack during a break and could not proceed. By the time the sixth and seventh days of trial rolled around, Wife was represented by her second trial lawyer. On appeal, Wife complained about several of the trial court actions she believed were unfair. The Court was not sympathetic, attributing her difficulties while proceeding without a lawyer to her legal naïveté and the heavy burden she faced trying a case without representation.

Deciding to fire your lawyer during the trial is a bad idea. If you need to change lawyers, do it early and well before trial.

The decision to hire a lawyer is an important one. Your case is likely to be your most significant interaction with the legal system in your lifetime. Take your time, meet with several lawyers, and find one who’s right for you. Choose carefully.

Source: Averwater v. Averwater (Tennessee Court of Appeals, Middle Section, December 28, 2023).

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