Internist Not Entitled to Alimony Reduction After Diabetes Diagnosis

Tennessee alimony modification and termination case summary.

Kerry Douglas Friesen v. Beverley Joy Friesen

The husband and wife in this Hamilton County, Tennessee, case were divorced in 2008, at which time they entered into a marital dissolution agreement.  The husband, an internal medicine physician, agreed to pay $1,000 per month alimony in futuro.

In 2016, the husband was back in court asking for a modification of the alimony.  He claimed that there had been a material and substantial change in circumstances.  He argued that he had Type 1 diabetes, which had gone undiagnosed until 2014.  He had to adjust his work and life schedule, making his day much more inefficient.

The husband asserted that his income had declined.  At the time of the divorce, he had earned $10,000 per month from online consultations, but this company had gone out of business.

The trial court examined the evidence, but found that the figures were refuted by other evidence, such as bank records.  It found that the husband was still capable of paying $1,000 per month, and that there was no substantial change of circumstances.  The trial court also denied the wife’s request to increase the alimony, but awarded her over $10,000 in attorney fees.  The husband then appealed to the Tennessee Court of Appeals.

The appeals court first noted that the lower court’s factual findings are presumed to be correct, and that findings will not be reversed unless the evidence preponderates against them.  In light of this standard, it reviewed the evidence.

In particular, the appeals court zeroed in on the fact that the husband had assets from which the alimony could be paid.  Even though his source of income had changed, the fact that he had an ability to pay meant that there had not been a substantial change.

The husband also argued that the lower court had not properly analyzed the statutory factors, but the appeals court disagreed.  The appeals court also found that the wife was entitled to her attorney fees.  For this reason, it affirmed the lower court’s decision.

Judge W. Neal McBrayer authored a concurring opinion in which he agreed with the award of attorney fees, but would have used a different standard.

No. E2017-00775-COA-R3-CV  (Tenn. Ct. App. Nov. 5, 2018).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Alimony Modification in Tennessee Law | How to Modify Alimony.