Alimony in Futuro Not Appropriate Where Spouse Has Some Education and Work Skills

March 27, 2013
By The McKellar Law Firm, PLLC on March 27, 2013 11:08 AM |


In this case titled Hatfield v. Hatfield, No. M2012-00358-COA-R3-CV (Tenn. Ct. App. Feb. 7, 2013), Tennessee divorce attorneys learn that the trial court erred in awarding alimony in futuro due to Wife's education level and ability to work, and that the award of almost all the value of the marital property to Wife was not equitable.

The facts of the case are as follows: Wife filed a complaint for divorce in March 2011 alleging adultery by Husband after twenty-four (24) years of marriage, for most of which Wife was a stay-at-home mother. The couple had three children born of the marriage. At the time of filing the initial complaint, the oldest child had reached the age of majority.
In April 2011, the trial court ordered Husband to pay temporary child support in the amount of $1,422.00 per month and temporary spousal support in the amount of $1,422.00 per month. He was also ordered to continue paying the parties' main household bills such as utilities and a home equity line of credit. The trial court allowed him to use his 401k account, but only "for the purpose of paying child support and temporary alimony." The following month the trial court allowed Husband to withdraw $5,000.00 for his attorney fees and expenses and $5,000.00 for Wife's attorney's fees and expenses from the 401k account.

In November of 2011, the divorce hearing was held over a two day period. After the hearing, the court entered a memorandum opinion regarding the permanent parenting plan and the division of marital property. In this opinion, the court proposed that Wife remain the primary residential parent and found her income to be zero. Husband subsequently filed a motion objecting to the court's proposed final order. In the court's ruling on this motion, it stated that it was not the court's intent to award alimony in solido to Wife. Instead, received a larger portion of the marital property in lieu of said alimony in solido. Wife had a need of $2,300.00 per month; however, Husband only had the ability to pay $1,500.00 per month. The court reasoned that there were no assets that could justify an award of alimony in solido.

The final decree for divorce was entered in January of 2012. Wife was granted the divorce on grounds of adultery and awarded alimony in futuro in the amount of $1,500.00 per month. Wife was also awarded the equity in the marital home totaling $242,227.00 and the remaining 401k balance of $40,872.12. The court again stated that it was awarding wife a larger portion of the marital property because Husband could not afford to pay Wife's need. Husband appealed the decision arguing that the trial court erred in its division of the marital property and in awarding Wife alimony in futuro instead of transitional alimony or no alimony at all.

Analysis: In considering Husband's appeal, the appellate court stated that an equitable division is not necessarily an equal division. According to Husband's calculations, the trial court awarded Wife 99% of the marital property; Wife's calculations showed 96.5%. Wife asserted that Husband dissipated marital assets by withdrawing money from the 401k account which bumped his share of the marital property to 21%. The appellate court rejected this argument due to the ruling of the trial court that allowed him to make withdrawals to pay his and Wife's attorney fees.

In regards to the marital property, the appellate court agreed with the trial court's strategy in treating wife as a disadvantaged spouse. However, it disagreed with the "extreme disproportion in the percentages awarded to the two spouses." The appellate court modified the property division awarding Husband the 401k balance and allowing Wife to retain the equity in the marital home.

In considering Husband's argument regarding alimony, the appellate court stated that the trial court erred in its calculations of Husband's ability to pay $1,500.00 per month in alimony. It reasoned that Husband's statement of income showed monthly expenses of $4,892.00 and his monthly income as $4,982.46. Subtracting the child support obligation of $1,357.00 and the alimony at the trial court's ruling of $1,500.00 left Husband with only $2,125.00 toward his monthly expenses. The appellate court averred that the evidence preponderated against the trial court's finding that Husband had the ability to pay the $1,500.00 in alimony in futuro. It modified Husband's obligation to $1,200.00. It also found that the trial court erred in awarding the alimony as in futuro. It stated that Wife had completed some college and had a real estate license which she could eventually use to support herself in the workforce. Therefore, the appellate court modified the alimony in futuro to transitional alimony for a period of five (5) years.