Facts: Husband and Wife, the parents of one child, divorced after seven years of marriage. After their child was born, Wife agreed to work only part-time to care for the home and their child.

The trial court found Husband to have an average annual income of $160,000, which was an earning capacity five times greater than Wife’s earning capacity.

Wife was found capable of increasing her earning capacity over time and eventually becoming self-sufficient. Thus, the trial court found she was not a candidate for alimony in futuro, which is sometimes called “permanent alimony.”

Wife was awarded transitional alimony over 10 years, starting with $2000 per month for four years, followed by $1500 per month for two years, then $1000 per month for two years, and $500 per month for two years. She was also awarded $50,000 as alimony in solido, sometimes called “lump-sum alimony,” to defray the monthly deficits she was expected to incur as her transitional alimony payments decreased over time.

The trial court explained the 10-year timeframe was the period necessary for the child to complete eighth grade.

Husband appealed the amount and duration of the alimony award, arguing that the amount awarded exceeds Wife’s need and his ability to pay.

On Appeal: The Court of Appeals vacated the trial court’s ruling in part.

The trial court made contradictory and inconsistent rulings regarding the payment for work-related childcare. Husband was either responsible for the entire amount of work-related childcare, i.e., $1624 per month, or his prorated portion of $1317. Different orders say different amounts.

The Court found this conflict requires reconsideration of part of the transitional alimony award:

As both parties acknowledge in their briefs, both Husband and Wife have an effective deficit during the first four years…. [T]he amount of Husband’s deficit during the first year or two [depends on the resolution of the work-related childcare issue.]

Regardless of which amount is correct, it appears that the trial court did not factor this expense in when determining Husband’s ability to pay $2000 of alimony during the first year or two following the divorce. Accordingly, Husband’s deficit may be greater for the first year or two, depending on when [the child] starts kindergarten, then anticipated by the trial court.

As for the remaining eight years of transitional alimony, Husband’s deficit is diminished and then eliminated as his alimony obligation decreases, while Wife’s deficit increases. Nevertheless, the trial court took Wife’s ongoing deficit into consideration when it awarded Wife alimony in solido of $50,000 to bridge this gap.

For the foregoing reasons, we find that Husband’s transitional alimony obligation for the first two years, or a portion of that period during which he pays child care expenses, creates a burden on Husband that appears greater than he is able to pay. Thus, it may constitute an injustice to Husband. For this reason, we vacate the award of alimony for the first two years and remand the issue to the trial court to reconsider Husband’s ability to pay in light of his obligation to pay all or a prorated portion of the work-related childcare and to modify the alimony award accordingly. We affirm the remainder of the award of transitional alimony, as well as the award of alimony in solido in the amount of $50,000 to aid Wife in the transition as her transitional alimony decreases.

The Court vacated the transitional alimony award during the first two years and returned the case to the trial court to reconsider that part of the award. The rest of the alimony award was affirmed.

K.O.’s Comment: In a footnote, the Court notes that Husband refers to his challenge to the amount of transitional alimony as one of challenging the duration.

Husband frames this issue as though he is also challenging the “duration” of transitional alimony; however, he makes no argument and cites no authority in his brief in support of this issue. Thus, the question of whether the evidence is sufficient to support an award of transitional alimony for the duration of 10 years is waived.

This may have been a lucky mistake for Husband because the trial court’s finding that Wife will still need alimony after eight years could (should?) have disqualified her as a candidate for transitional alimony, thus strengthening her case for alimony in futuro.

Consider the Lunn opinion, where the Court, relying on several cases affirming transitional alimony for a duration of “eight years at most,” changed an award of transitional alimony for over eight years to alimony in futuro.

You can check out my comment on the Knizley opinion if you want to go further down the rabbit hole on the maximum duration for transitional alimony.

Source: Tittle v. Tittle (Tennessee Court of Appeals, Middle Section, January 29, 2024).

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