Rehabilitative vs. In Futuro Alimony, Long Term Marriage Involving Physician Earning $500,000 Annually ; Sevier County Chancery Court

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Santee v. Santee, (Tenn.Ct.App., filed February 15, 2018)


Trial Court:  This case involves a 26 year marriage. Husband is a radiologist who earns ($500,000) per year. Wife, a high school graduate, was a stay-at-home parent. Wife sold some Mary Kay products during the marriage, but she lost money doing so. Five children were born of the marriage, but only one was a minor at the time of trial.  Wife acknowledged having had an adulterous relationship, which began in 2012. Husband sued for divorce in September 2013. This case was tried over the course of two days in August 2016.

The trial court equally divided the marital estate with each party receiving approximately one million dollars.

The trial court awarded wife $3,500 per month in rehabilitative alimony for 60 months. Wife appealed and the Court of Appeals affirmed the alimony award with Judge Susano dissenting from the majority on the alimony issue.   Judge Susano would have awarded in futuro alimony of $3,500 per month.

Court of Appeals: Of note, the Court wrote as follows concerning the decision to affirm the award of rehabilitative alimony. 

First of all, the Court observes that there is no question here but the wife is economically disadvantaged within the meaning of the statute. There just is no question about that. The husband is a medical doctor, earns half a million dollars a year because of his very hard work schedule and the success that he’s made himself. On the other side of the coin, the wife is a high school graduate only and has not worked outside the home at least in some 26 years. So there just is no question but that the wife is economically disadvantaged as compared to the husband.

The wife testified at her deposition that she wanted to get a two-year degree and to become a medical assistant. As the Court observed earlier, she’s in excellent health and could do that. The Court concludes that the wife can and should be rehabilitated to the degree possible under the circumstances.

The Court also notes, by the way, in this that in five years the husband will be — rather, the wife will be 55 years old; the husband will be 62. There was evidence at the trial to the effect that the parties had seen a financial adviser back in 2012 and that, at least from the husband’s viewpoint, that they had agreed that “Look, we need to embark on a plan here that will allow me to retire in the year 2017,” that is, five years from 2012. And there was some evidence to the effect that “In order to get that accomplished, we need to get ahold of our expenditures and not spend so much.” There’s also evidence to the effect that the wife did not agree with that and, perhaps not coincidental, that it was 2012 when, according to the wife, that the parties began to drift apart. And it was certainly in 2012 when the wife began the affair with Mr. Hopson.

It is undisputed that Wife is the economically disadvantaged spouse. In addition, this was a marriage of quite some duration—over 25 years. These factors would tend to
support an award of alimony in futuro. Other factors, however, weigh against such an award of long-term support. For one thing, the Trial Court found specifically that Wife is
in excellent health, and could in time enter the workforce. Also, there is the issue of Husband’s plan to retire from his lucrative career, which naturally would affect his ability
to pay. The Trial Court observed that perhaps it was not coincidental that Wife began her affair around the time she learned of Husband’s plan to retire.

Wife essentially triggered this divorce. It was legitimate for the Trial Court to factor this history into its decision-making regarding spousal support including both the type and the amount. The evidence does not preponderate against any of the Trial Court’s findings. Our standard of review on the alimony issue being abuse of discretion, we find the Trial Court did not commit reversible error in declining to award Wife alimony in futuro or in the amount of rehabilitative alimony awarded. While the rehabilitative alimony awarded by the Trial Court will not transform Wife entirely from being economically disadvantaged, it will enable her to increase her capacity for self sufficiency. Here, the Trial Court found that rehabilitative rather than alimony in futuro or transitional alimony is necessary and appropriate. Applying all the relevant statutory factors to the Trial Court’s findings in this case along with the Trial Court’s division of the marital estate, we find the result to be neither illogical nor unjust.

Dissenting Opinion:  Judge Susano wrote separately, concurring in part and dissenting in part.  The following part of the dissent addresses the alimony issue. 

I dissent, however, from the majority’s decision to award wife “rehabilitative” alimony rather than alimony in futuro. I do so because, I believe, the evidence clearly and overwhelmingly preponderates against the trial court’s “rehabilitative” decision.

The trial court “observe[d] that there is no question here but that wife is economically disadvantaged within the meaning of [Tenn. Code Ann. § 36-5-121(c)(2)
and (e)(1)].” Husband earns approximately $500,000 annually from his profession as a radiologist. Wife, on the other hand, was a stay-at-home wife and mother during the 26
years of the parties’ marriage. Her one business undertaking resulted in a loss of some $10,000. Enough said.

The majority misconstrues the concept of “rehabilitation.” It is a concept with a clear statutory definition. The issue is not whether wife can “increase her capacity for self-sufficiency” or be in a position to fund a good or reasonable standard of living. The real issue is whether wife can be “rehabilitated” as that concept is defined in Tenn. Code Ann. § 36-5-121, the ability to enjoy a reasonably comparable post divorce standard of living.

In this case, we are comparing (1) a standard of living funded by an income of half a million dollars with (2) that of one attainable by a high school graduate with essentially
no work history for some 26 years. We need to look no further than husband’s own statement. According to him, wife “has no real ability to earn an income anywhere close
to the lifestyle” enjoyed by the parties in their marriage.

The fact that wife wants to get a two-year degree so she can be a medical assistant misses the point. Wife going forward can never enjoy a standard of living even remotely
close to that which she enjoyed in the marriage or the standard of living that husband will enjoy as a result of his $500,000 annual income.

The majority talks about the fact that husband was planning to retire in 2017. It says that his retirement would “naturally . . . affect his ability to pay.” If and when
husband does retire, his situation will be analyzed under the principles set forth in Bogan v. Bogan, 60 S.W.3d 721 (Tenn. 2001). Until husband retires, any decision regarding the
impact of such an event on his ability to pay in futuro spousal support is purely speculative and premature.

I would reverse the trial court’s decision awarding “rehabilitative” alimony and remand to the trial court for the entry of a judgment awarding wife alimony in futuro of
$3,500 per month, said award to terminate on the death of either party or wife’s remarriage.

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