Roby v. Roby, (Tenn.Ct.App., filed August 1, 2017)
Husband and Wife were 49 and 50 years old, respectively, at the time of trial and had been married for 30 years. Husband retired from the United States Air Force in 2004, after serving 20 years. The couple had two adult children, and Wife spent the early years of the marriage as a full-time homemaker. During Husband’s military service, the family relocated frequently, living in Alaska, Nebraska, Tennessee, Florida, and Illinois. Following Husband’s retirement from the military, the family settled in Middle Tennessee, and Wife returned to work outside of the home.
Husband worked for the Tennessee Valley Authority (“TVA”), making $84,080 per year. In addition to his salary, Husband testified that he often received overtime pay, but overtime was not guaranteed. Still, Husband conceded that, including overtime pay, he made approximately $113,000 in 2014 and that he had likely made over $100,000 per year for the past three years. The testimony revealed that, in addition to his income from TVA, Husband received service-related disability in the amount of $1,200 monthly. He also received $1,907 per month in military retirement benefits. Conversely, Wife was employed as the secretary of the local school board, making roughly $32,400 per year.
The trial court awarded Wife transitional alimony in the amount of $500 per month for 12 years. On appeal, Husband challenged the amount and duration of the alimony awarded to Wife. While acknowledging an ability to pay alimony, Husband argued that Wife failed to demonstrate a need for alimony in an amount and of a duration awarded by the trial court.
The Court of Appeals modified the the Trial Court award of transitional alimony to an award of alimony in futuro writing:
Transitional alimony, in particular, is appropriate if the court finds one spouse is economically disadvantaged and needs financial assistance in adjusting to the economic consequences of divorce, but rehabilitation is not necessary. Tenn. Code Ann. § 36-5-121(d)(4). This type of alimony is “designed to aid a spouse who already possesses the capacity for self sufficiency” but needs temporary financial assistance to adjust to the economic reality of one income. Thus, our supreme court has characterized transitional alimony as “a form of short-term support.” Concerning the duration of transitional alimony, we have observed that we have “affirmed an award of transitional
alimony for a period of eight years at most.”
Alimony in futuro, on the other hand, is “intended to provide support on a long term basis until the death or remarriage of the recipient.” This long-term support is awarded when one spouse is relatively economically disadvantaged and rehabilitation is not feasible. It is appropriate where, the disadvantaged spouse is unable to achieve, with reasonable effort, an earning capacity that will permit the spouse’s standard of living after the divorce to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse.
Tenn. Code Ann. § 36-5-121(f)(1).
In the case before us, due to the disparity in income and relative earning capacity between these spouses, we conclude that the court’s award of transitional alimony should be modified to an award of alimony in futuro. See Lunn, 2015 WL 4187344, at *11 (modifying an award of transitional alimony for 16 years to alimony in futuro); Lubell v. Lubell, No. E2014-01269-COA-R3-CV, 2015 WL 7068559, at *18 (Tenn. Ct. App. Nov. 12, 2015) (concluding that a modification of an award of transitional alimony to alimony in futuro was appropriate). Under the circumstances of this case, an award of alimony for a period of 144 months, or 12 years, constitutes long-term support.