$9K / Mo. Alimony in Futuro Owed by Surgeon Overturned

Tennessee alimony divorce case summary after 36 years married.

Richard Alan Ellis v. Donica Ann Woods Ellis

The husband and wife in this Shelby County, Tennessee, case were married in 1979 and had four children.  The husband was a surgeon.  The wife had jobs in nursing and teaching early in the marriage, but after the birth of the second child, she quit working to care for the children.  She did, however, maintain her nursing license.

The husband moved out of the marital home in 2015 and filed for divorce, alleging irreconcilable differences.  There was still one minor child at that time, and the wife asked for spousal and child support.  She alleged that the husband had committed adultery and was guilty of inappropriate marital conduct.

Trial was held in 2017 before Judge James F. Russell.  The wife was not working at the time, and both parties had vocational experts testify as to her expected income.

After assessing the wife’s potential income and expenses, the trial court concluded that she had a monthly need of about $8,000.  The final decree awarded her $9,000 per month in alimony in futuro.  In addition, the court awrded alimony in solido of about $22,000 to cover repairs to the marital residence, and over $121,000 for attorney’s fees.  Both parties appealed various issues.  The husband argued that the award of alimony and attorney fees was inappropriate.

The appeals court first addressed the award of alimony in futuro.  After stating the statutory factors, it examined the evidence regarding the wife’s need.  Ultimately, in concluded that the trial court had erred in its award of $9,000 per month.  The only finding as to need was a statement that the wife’s need was “something in the neighborhood of $8,000.”  But the appeals court found that the trial court hadn’t given due consideration to its finding that the wife would be able to re-enter the employment market as a nurse.  The trial court failed to factor in the potential wages the wife would be able to earn.

Also, the appeals court noted that the lower court hadn’t properly considered whether rehabilitative or transitional alimony might have been appropriate.  Before awarding alimony in futuro. the court must first make a determination that one of these forms of  temporary alimony could not be used.

For these reasons, the appeals court sent the case back for the lower court to reconsider the issue.  It pointed out that if long-term support was called for, there would need to be appropriate findings.

The Court of Appeals then tackled the issue of attorney’s fees.  It first noted that such an award was discretionary.  But it also pointed out that there were no findings as to the wife’s ability to pay.  There was also not a finding of reasonableness of the fees, which was required by earlier precedents.  For these reasons, the Court of Appeals also sent this issue back to the trial court for a proper determination.

After addressing the other issues, the Court of Appeals remanded the case.

No. W2017-02287-COA-R3-CV  (Tenn. Ct. App. Jan. 31, 2019).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Alimony Law in Tennessee.