Facts: Husband and Wife separated after 56 years of marriage after an adult relative accused Husband of touching her inappropriately. Husband incurred criminal charges, spent $25,000 of marital funds for his legal defense, and eventually pleaded guilty to sexual battery and harassment.

Husband was 76 years old, and Wife was 72 years old. Both had retired.

Wife receives $1794.63 each month from a retirement benefit and Social Security. Wife also received a small inheritance from her mother, $134,173.57 of which was her separate property.

Husband receives $5785.63 each month from retirement benefits and Social Security.

In the division of property, Wife received an IRA valued at $285,000 while Husband kept the marital residence.

After considering the division of property, the trial court concluded that Wife’s monthly income would go up to $3000. The trial court then ordered Husband to pay Wife $1000 each month as alimony in futuro.

Husband appealed.

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

Husband first argued the trial court was wrong to classify part of Wife’s inheritance as her separate property.

Separate property includes “[p]roperty acquired by a spouse at any time by gift, bequest, devise or descent.” Separate property becomes marital property by commingling if it is inextricably mingled with marital property or with the separate property of the other spouse. If the separate property continues to be segregated or can be traced into its product, commingling does not occur.

The Court found no error with the trial court’s classification of part of Wife’s inheritance:

Although the $134,173.57 gift was initially deposited into the parties’ joint bank account, soon afterward, on Wife’s insistence, they used the gift to purchase an annuity with no early withdrawal penalty because Wife “didn’t want that money tied up” in case she needed it to care for her mother. Once the annuity matured, Husband and Wife had separated. At that point, Wife withdrew the entire matured amount and deposited it into a separate account “for safekeeping,” pending the divorce. Wife properly testified that the $15,826.43 of marital money used to purchase the $150,000 annuity was subject to equitable division. These facts do not evidence an intention that the $134,173.57 gift to Wife was meant to become marital property. The parties did not spend this gift in the way that they did with the $41,000 gift that Wife took no steps to segregate; it simply remained in the annuity. The evidence in the record does not preponderate against the trial court’s implicit finding that tracing applies to the $134,173.57 gift, and it was properly classified as Wife’s separate property.

Husband then argued that the award of alimony in futuro of $1000 monthly was unfair.

In Tennessee, the two most important factors to be considered in any spousal support determination are the disadvantaged spouse’s need and the obligor spouse’s ability to pay. An award of alimony in futuro remains in the court’s control during the award, and may be increased, decreased, terminated, extended, or otherwise modified, upon showing a substantial and material change in circumstances.

Again, the Court found the trial court performed the proper analysis:

The trial court expressly considered the parties’ marriage of over 50 years, the fact that neither Husband nor Wife can now obtain or sustain gainful employment due to their ages and how long they have been retired, Wife’s chronic health problems, their financial resources from Social Security and retirement benefits, their separate assets, and Husband’s conduct which precipitated the divorce.

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We conclude that the trial court properly applied the correct legal standards in considering Wife’s request for alimony in futuro. Wife’s need and Husband’s ability to pay are established by the evidence in the record.

Finally, Husband faulted the trial court for not specifying what the change of circumstances would be for a future modification. The Court disagreed, explaining that a “petition for modification of alimony will be an appropriate means by which to address the various possibilities noted in Husband’s brief, if and when they arise.” The Court found no error in the trial court’s failure to find a “built-in modification” of alimony at the time of divorce.

The Court affirmed the trial court’s alimony decision and awarded Wife her attorney’s fees on appeal.

Source: Rogers v. Rogers (Tennessee Court of Appeals, Eastern Section, August 8, 2025).

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