In the case titled Fields v. Fields, E2012-02406-COA-R3-CV, Slip Copy, 2013 WL 6858383 (Tenn. Ct. App. Dec. 27, 2013), Knoxville divorce attorneys learn whether it is appropriate for a downward departure in regards to alimony in futuro when a party alleges inability to maintain an earning capacity due to an injury.Facts
Husband and Wife were granted a divorce in which the trial court ordered alimony in futuro (hereinafter "alimony") of $1,100.00 per month to Wife. Because husband was temporarily out of work due to a knee surgery, the court suggested the parties negotiate or return for a hearing once Husband returned to work to set a new alimony amount commiserate with his income.
After the divorce was final and the Final Order was entered, Husband returned to work for a period of one year and five months until he had to undergo another knee surgery. After the surgery, Husband never returned to work. Husband filed a motion asking for a reduction of the alimony. Wife countered with a motion to increase the alimony payments.
A bench trial was held in which Husband admitted he made a "conscious decision not to return to his previous line of work." He advised that in addition to the knee injury he also broke his wrist while working. He claimed $1,600.00 in monthly expenses and that his only income was disability payments. He also averred he was making the alimony payments to Wife via credit card advances. Wife averred she had been working since the divorce was final, and made $9.00 to $10.00 per hour working full-time hours. She stated she had to refinance the marital home that was awarded to her in the divorce and obtained an "interest only" loan in order the keep the house. She claimed $4,795.00 per month in expenses, excluding health insurance.
The trial court denied Husband's motion to reduce the alimony averring, "the decisions made by [Husband] relative to his employment are unreasonable and have not been made in good faith."
It further ruled Husband had not proven an inability to work. In its decision, the trial court granted Husband a six month deferral period at the end of which he was to pay alimony in futuro of $2,000.00 per month to Wife.
Husband filed a motion to alter or amend the judgment. He pointed out a VA "exam note" that stated Husband "could not possibly work a construction site" due to his knee surgeries. He also presented an affidavit certifying his disability rating of 100% from March 2011 to May 2012, with an automatic reduction to 40% after May 2012. Husband stated that this information and his recent surgeries constituted a material change of circumstances, because he could no longer work in his former profession and that this justified a reduction in his alimony obligation.
Based on Husband's information the trial court granted the motion to reconsider, and found Husband had established a level of impairment to his knee and hand which warranted a reduction of the alimony obligation during his period of unemployment. However, it further found Husband did not provide sufficient evidence to warrant a downward modification. It affirmed its judgment and ordered Husband to pay Wife $2,000.00 per month in alimony effective June of 2012. Husband appealed.Analysis and Conclusion
On appeal the appellate court had to determine if Husband's disability rating and recent surgeries constituted a substantial and material change in circumstances to warrant a downward deviation on his alimony obligation, and whether the trial court abused its discretion when it increased Husband's alimony obligation when Wife's circumstances had not changed since the divorce was final.
According to Tenn. Code Ann. § 36-5-101(a)(1) (Supp. 2000), a court may not modify or terminate a spousal support judgment unless it is found that a substantial and material change in circumstances has occurred subsequent to the entry of the original support decree. A change in circumstance is deemed to be material when: (1) "occurred since the entry of the divorce decree ordering payment of alimony," Watters v. Watters, 22 S.W.3d 817, 821, 821 (Tenn. Ct. App. 1999), and (2) was not "anticipated or [within] the contemplation of the parties at the time they entered into the property settlement agreement," Id. A change in circumstances is considered to be substantial when it significantly affects either the obligor's ability to pay or the obligee's need for support. Bowman v. Bowman, 836 S.W.2d 563, 568 (Tenn. Ct. App. 1991).
After reviewing the trial court's record, which indicated Husband had more than enough income over and above his expenses (to the tune of $80,000 per year) to cover the alimony obligation imposed by the court, the appellate court found the trial court was accurate in its summation of the legal facts of the case. At the end of the marriage, Husband made over $100,000.00 per year and drew another $1,200.00 per month in military disability benefits. It further found Husband was not actively seeking employment, but was still employable and capable of earning a comparable income that he enjoyed during the marriage.
As far as Husband's argument against the increase the trial court awarded Wife in alimony payments, the appellate court found no evidence that preponderated against the trial court's decision. It was pointed out by the trial court at the time of the original award of $1,100.00 per month, that the court understood and knew that this amount was low due to Husband's unemployment and advised the parties when he became employed again to negotiate a new amount or return for the court to have a hearing on the matter. Husband did return to work until he required another knee surgery after which he never returned to work again. The trial court noted Husband did not give any factual reason for his lack of employment, and pointed out the note in Husband's VA file was from a physician's assistant, not his doctor. In fact, it was reasoned that Husband's decision not to return back to work actually constituted a material change in circumstance that would justify an upward modification as opposed to a downward modification to match his prior earning capacity. Therefore, the trial court's opinion was affirmed and costs for the appeal were taxed to Husband. The case was remanded back to the trial court for the enforcement of the judgment.