Tennessee Appellate Court Finds No Cohabitation And Upholds Trial Court’s Alimony In Futuro Ruling

An award of alimony in futuro may be modified or terminated by a Tennessee court upon proof that a material change in circumstances has occurred such as cohabitation. To be material, the Alimonychange in circumstances must have been unforeseeable, unanticipated, or not within the parties’ contemplation when the order for alimony was awarded.

The facts of the Wiser v Wiser case are as follows: Cyrus W. Wiser, Jr. (Husband) and Regina D. Wiser (Wife) were divorced in August 2005, following a marriage lasting twenty-three years. They had two children who were nine and thirteen at the time of the divorce. Husband was ordered to pay Wife alimony in futuro in varying amounts until 2017, when Wife would become the owner of two office buildings that would produce income for her ongoing support. Husband was also ordered to pay child support.

In June 2007, Wife filed a petition to increase Husband’s alimony and child support payments. The trial court granted Wife’s request for an increase in child support but denied her request for an increase in alimony. Wife appealed the trial court’s order to the Court of Appeals, which reversed the trial court’s judgment on the issue of alimony. The Appellate Court wrote the following:

We must conclude that the trial court’s decision not to modify Husband’s alimony obligation in light of the very substantial increase in his income amounts to an abuse of discretion. The award of alimony in futuro is modified to $10,000 per month, retroactive to the date on which Wife filed her petition to modify the alimony award. We note that the original alimony award was set to decrease by $1000 per month every four years, until its termination twelve years from the date of the decree. In light of the evidence that Wife has struggled to establish a career after her long absence from the workforce, as well as the fact that her child support will decrease and terminate as the two children reach majority in 2010 and 2014, the alimony amount shall remain constant until the termination date. The termination date for Husband’s alimony obligation remains unchanged from the termination date set in the original decree of divorce.

Several years later in a petition filed by Husband in April of 2011, he sought a reduction or termination of his alimony payments and a reduction of his child support based on a decrease in his income. Husband amended his petition on September 21, 2011, to include allegations regarding Wife’s cohabitation with her boyfriend. Husband asserted that Wife’s cohabitation and the decrease in his income each constituted a substantial and material change of circumstances that warranted a reduction or termination of Husband’s alimony obligation.

This case was tried over the course of four days. The parties introduced what the trial court referred to as a “mountain of evidence” in support of their respective positions. Despite Husband’s “painfully expensive attempts to prove Wife was co-habiting with her boyfriend,” the trial court found that Wife was not cohabitating with anyone and that Husband would not be relieved of his alimony obligation.

Husband appealed the trial court’s final order arguing it erred in three ways. First, Husband contends the evidence preponderates against the trial court’s finding that Wife did not cohabitate with Mr. Smith. Second, Husband asserts the trial court erred in finding he was only entitled to a partial modification of his alimony payments. Third, Husband claims the trial court erred in its award of attorney’s fees and costs to Wife.

After review and deliberation the Court of Appeals of Tennessee at Nashville affirmed the trial court’s decision concluding the following:

Our review of the record shows that Husband presented evidence that Wife may have spent more than six days at a time at her boyfriend’s house in Florida at different points in time, but this alone is insufficient to prove Wife was cohabitating with her boyfriend. Moreover, as the trial court found, there was no proof that Wife supported her boyfriend or that [her boyfriend] supported Wife. Finally, Wife testified that her need for the spousal support had not changed since it was modified a few years earlier. We cannot say, based on the evidence presented at trial, that the evidence preponderated against the trial court’s conclusion that Wife was not cohabitating with her boyfriend.

If a Tennessee court has awarded you alimony in futuro and your ex-spouse makes claims that a material change of circumstance has occurred whereby he or she has made known intention to re-litigate a final order, you should seek the services of an experienced family law attorney. Contact Donna Wagner to schedule a consultation.

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