Former Husband Can’t Prove Live in Lover to Reduce Alimony

Tennessee alimony modification law case summary. Tennessee divorce and family law from the Tennessee Court of Appeals.

Hand v. Hand – Tennessee Alimony Modification Case – Modification Denied

Diane S. Hand and Golden E. Hand, Sr., were married twice and divorced twice.  After the second divorce, Golden was ordered to pay in futuro alimony in the amount of $1,200 per month, and was also responsible for the mortgage on the home, which was awarded to Diane.

Diane and Golden’s first marriage ended in divorce in about 1990.  The two spouses reached an agreement as to property settlement, and Golden was awarded his business, Nashville Hydraulics, and the building where that business was located.  He also paid Diane $13,000 as part of that settlement.

Seven months after that divorce, Diane and Golden remarried, and they remained remarried for another fourteen years, until Diane filed a complaint for divorce in Davidson County.  She accused Golden of misconduct.  Golden also filed a counterclaim and accused Diane of misconduct.  The trial court found that both parties had acted inappropriately, and granted the divorce.

After five years, Golden made a motion to modify or terminate the alimony.  As evidence of the change of circumstances, he pointed to Diane’s conveyance of the house to her son, and her relationship with a new boyfriend.  He also alleged that his ability to pay alimony had diminished.  Diane, however, argued that the amount of alimony should be increased, since her health had gotten worse, and the cost of her needed medications had soared.  The trial court denied both requests, and kept the alimony obligation at $1,200.  Both parties appealed, but the Court of Appeals affirmed.

Diane admitted that she had conveyed the property to her son, but pointed out that she had retained a life estate and was living in a small “pool house” on the property.  She also pointed out that there was consideration for the transfer in the form of liquidation of the mortgage.

The trial court held five days of hearings, and first concluded that the transfer of the property to the son amounted to a sale, and that Golden’s obligation to pay the mortgage remained in effect.  The trial court also denied Diane’s request to increase the alimony, since any change in her circumstances was foreseeable at the time of the original divorce, and since Golden didn’t have the ability to pay more.

The Court of Appeals affirmed, because it agreed that there had been no substantial change in circumstances.

In determining Golden’s ability to pay, the Court of Appeals first looked at his business, which Golden described as a “mom and pop operation.”  He had operated the business for over thirty years, and most of the clients were small contractors.  It had a handful of employees, including Golden’s brother.  Golden also received a $240 monthly pension from the VA due to injuries suffered in Vietnam.

Golden took the position that the business wasn’t doing well because of the bad economy.  He worked 12-14 hour days and rarely took a vacation.  Both the company’s and Golden’s tax returns were offered into evidence, and the Court agreed that Golden’s account of his business was essentially accurate.  In the years 2004-2008, gross sales were $644,872, $697,980, $791,039, $820,260, and $791,290, respectively, and the returns showed a loss for each of those years.  Golden’s personal income also showed a decline over those years.

There was also some evidence that Golden received rental income from the building, but the Court noted that his personal finances and those of the business were intermingled so that it was sometimes impossible to tell them apart.  The Court did note, however, that Golden was able to consistently maintain a balance of about $30,000 in his credit union account.

After considering all of this evidence, the Court of Appeals agreed with the trial court that overall, Golden remained capable of paying alimony as ordered.

The Court of Appeals next turned to what it called the “Live-in Lover” statute.  In the original 2004 divorce, Diane admitted that she was involved in a relationship with one Mr. Sullivan, but she denied that it was a sexual relationship, and the trial court found that there was insufficient evidence to prove adultery.  But during the later modification hearing, she admitted that she had entered into a sexual relationship with Mr. Sullivan.

Under the Tennessee “Live-in Lover” statute, if a person receiving alimony lives with a third person, there is a rebuttable presumption that the third person is either contributing support or receiving support, and the alimony obligation should be suspended.

However, the trial court specifically found that Diane was not living with Mr. Sullivan.  While both Diane and Mr. Sullivan had separate residences, Golden retained a private investigator who noted that their vehicles were sometimes parked outside the other’s residence overnight.  The Court of Appeals agreed with the trial court that there was insufficient evidence to invoke the “Live-in Lover” statute.

The Court of Appeals also looked at Diane’s health issues, including type 1 diabetes, blockages in her cardiac arteries, and the need for a knee replacement.  She paid about $1,200 per month for medications.

The Court of Appeals concluded that Diane was still in need of alimony, and that the trial court properly denied Golden’s motion to modify.

Finally, because both Courts concluded that the transfer of the property was for adequate consideration, this would not affect Golden’s obligation under the mortgage.

Hand v. Hand, No. M2010-02404-COA-R3-CV (Tenn. Ct. of App., July 31, 2012).

See original opinion for exact language.  Legal citations omitted.

To learn more about alimony, read Tennessee Alimony Law in Divorce | Answers to FAQs.  Also, see the MemphisDivorce.com Tennessee Family Law Blog and its Alimony category.

Memphis divorce lawyer, Miles Mason, Sr. practices family law exclusively and is the founder of the Miles Mason Family Law Group, PLC, which handles Tennessee family law matters including divorce, alimony, alimony modification, child support, and child support modification.  Download our free e-Book, Your First Steps: 7 Steps Planning Your Tennessee Divorce.  Contact an attorney today at (901) 683-1850.