Ex-Wife’s Taking In Renters Not Sufficient Grounds to Drop Alimony to Zero

Tennessee alimony modification case summary after 17 years married.

Deanna Lynn Akers v. Neil E. Powers

Former Wife’s Taking In Renters Not Sufficient Grounds to Drop Alimony to Zero

When the husband and wife in this Bradley County, Tennessee, case were divorced in 2016 after about 17 years of marriage, the wife was awarded $1100 per month of alimony in futuro.  About three years later, the husband made a petition to terminate the alimony.  The trial court, Judge Lawrence Howard Puckett, agreed and cut off the alimony.  The trial court also gave the husband a judgment for the overpaid amount.  The wife disagreed and appealed to the Tennessee Court of Appeals.

The husband had presented evidence of his changing employment and the wife’s cohabitation with both a paramour and renters.   The trial court had ruled that the wife’s monthly need was zero, due to her receiving Social Security and having renters.  The lower court also based its ruling on the husband’s declining health and inability to pay due to lack of retirement funds.

The appeals court began its look at the case by noting that factual findings of a trial court are presumed to be correct unless the evidence preponderates against them.  It also noted that the party seeking a change has the burden of proof to show substantial and material changed circumstances.

The appeals court noted that in the case of cohabitation, the burden of proof shifts to the alimony recipient to show that she still has an ongoing need.  But in this case, the appeals court held that this was improper to consider.  In this case, the trial court had been aware of the cohabitation when it originally awarded alimony, so there was no change of circumstances.

The appeals court agreed that the presence of renters might change the wife’s need.  However, there was no evidence to show that the rent income brought the wife’s need down to zero.  For example, while the wife had taken in renters after the divorce, there was no evidence that there were renters at the time of hearing.

Upon reviewing the evidence, the appeals court concluded that the wife had a need, even with rental income.  It called her current financial circumstances dire, and that she did have some need for alimony.

The appeals court agreed that the husband’s ability to pay the original $1100 might have been in question, but that it should not have been reduced to zero based upon the evidence.  For that reason, it reversed the lower court’s ruling and remanded the case for further proceedings.

The appeals court’s opinion was penned by Judge Kristi M. Davis.

No. E2021-01028-COA-R3-CV (Tenn. Ct. App. July 19, 2022).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Alimony Modification in Tennessee Law | How to Modify Alimony and our video, How is alimony decided in Tennessee?