Alimony In Futuro Appropriate in Tennessee Divorce When Employment Rehabilitation Not Possible

January 18, 2013
By The McKellar Law Firm, PLLC on January 18, 2013 3:44 PM |

In the case of The Tennessee Court of Appeals matter styled Dodd v. Dodd, No. E-2012-00378-COA-R3-RV (January 9, 2012), Tennessee divorce attorneys are given an example of when alimony in futuro is appropriate.

Facts: The parties married in 2002 and Husband filed for divorce in 2011. During the marriage, Husband opened and operated several businesses. After a trial, the court awarded Wife $3,156.00 per month in alimony in futuro. Husband appealed, arguing that there was no finding as to whether Wife could be rehabilitated, no evidence as to the parties' standard of living, no evidence that Husband had an ability to pay, and that the court misapplied the alimony factors found in T.C.A. ยง36-5-121(i).

Analysis: Trial courts have "broad discretion" to determine alimony in divorce cases, but the two most important factors are the payor's ability to pay and the payee's need. In the case of alimony in futuro, this type is only appropriate when rehabilitation of the payee spouse is not feasible. In this case, Wife was 56 years old at the time of divorce and was earning $400 net per month after taxes and insurance as a teaching assistant and had a high school education.

Accordingly, the trial court found that she was the economically disadvantaged spouse and that "nothing was shown that there's any training we could give to her over the next six years before she's at least eligible for social security that's going to make a hill of beans difference....I'm finding she's not trainable." Further, the trial court also found that there was no credible proof that Husband's expenses negated his ability to pay as he failed to file an Affidavit of Income and Expenses. The Appellate Court, on review, stated there was substantial evidence in the record to support Wife's inability to be rehabilitated or meet the standard of living enjoyed while married. Wife's only other work experience consisted of retail and restaurants, and her Affidavit showed a need of $3,375.00 per month. The proof regarding Husband's income included net income of one business of $105,328.76 over a two-month period, and that Husband owned and operated a convenience store and a restaurant. Husband failed to produce any tax returns or reliable profit and loss statements. Therefore, the trial court committed no error in it's alimony determination and the Appellate Court affirmed the decision.