Appeals Court Modifies Temporary Alimony Retroactively in Tennessee Divorce

January 2, 2012
By The McKellar Law Firm, PLLC on January 2, 2012 12:00 PM |

The case of Wilkinson v. Wilkinson, No. M2010-01974-COA-R3-CV (Tenn. Ct. App. Nov. 29, 2011) shows Tennessee divorce attorneys that filing to reduce temporary alimony payments while a divorce is pending may be granted on appeal.

When the parties' trial occurred, Wife was 59 and had been a stay at home mother for the majority of the marriage. Once the children enrolled in college, Wife attempted to go back to school but the Husband would not allow it. She subsequently worked as a substitute teacher earning $80 per day and worked 15 days per year. Husband had worked for a corporation in the 1990s and his last salary there was $275,000, and he received a severance package valued at $1 million in 1999. The corporation went bankrupt and these payments stopped two years later. Husband had entered into an internet venture, which collapsed. Husband testified he spoke with Wife about having to change their lifestyle due to financial constraints. They drained his 401k and moved into a smaller home in 2007. Husband then had multiple affairs. At the time of trial, Husband was earning $3,000 per month.

The trial court granted Wife the divorce and awarded her $800 per month in alimony in futuro under T.C. A. ยง36-5-121. The court ordered Husband to file an affidavit every 90 days stating his earnings in light of his earning capacity, which the trial court determined to be $5,400 per month. The marital residence was ordered sold, with proceeds split 67%/33% (as were all expenses, mortgage, etc.) The Court ordered Husband to repay $75,000 to Wife's as reimbursement for her loan from her brother, given after Husband moved out. Husband also had to pay debt totaling $33,000 and attorneys fees in the amount of $30,982.68 payable at $100 per month. Husband was also ordered to pay $66,000 in past due temporary support payments to Wife. Husband appealed.

The Appeals Court found the division to be "generally equitable" but found that Husbands payment of the $75,000 for the brother and the $66,000 of back support payments was a double payment for temporary alimony during the same time period. Accordingly, Wife was held liable for the debt to her brother, not the Husband. The Appeals Court also found the Wife attempted to keep the same pre-divorce lifestyle even after the finances were drained and the divorce was ongoing. The $800 in alimony was affirmed based upon the Wife's job prospects (negligible), health (problematic) and Husband's reduced ability to earn. However, the Appeals Court held the trial court erred in not granting Husband's Motion to Reduce Alimony filed in 2009, and ordered a modification effective from December 2009 until trial in 2010 (which was the basis for the $66,000 judgment of past due support) and therefore reduced that judgment to $35,400.