Tennessee Court Won’t Reduce Alimony Despite Ex-Wife’s Cohabitation

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

Susan Crosby Wilkinson v. Bradley Webb Wilkinson – Tennessee divorce alimony modification

The husband and wife were married in 1990 and had three children.  They divorced in 2008 and agreed to a permanent parenting plan and marital dissolution agreement which was approved by the court and incorporated into the final divorce decree.  This agreement called for the husband to pay transitional alimony in the amount of $3,000 per month for 24 months, and then $1,500 per month for an additional twelve months.  The agreement provided that these payments would self-terminate upon the wife’s remarriage.  The agreement stated that this would include both ceremonial marriage and cohabitation with an unrelated person for a total of 30 days.

In 2008, the husband stopped making alimony payments.  In 2011, the wife filed a petition for civil contempt and for arrearages.  The husband based his decision upon a report of a private investigator which showed that the wife was cohabitating with a third party for more than 30 days, had cancelled her cell phone service, and added a line onto the third party’s cell phone plan.

The trial court found that the husband was not in willful contempt, but ordered him to pay the remaining alimony and the wife’s attorney’s fees.  The husband appealed to the Tennessee Court of Appeals.  On appeal, the husband argued that the trial court erred by ordering a money judgment without finding him in contempt.  He also argued that the trial court erred in awarding a money judgment under the doctrine of laches due to the wife’s delay.  Finally, he argued that attorney’s fees should not have been granted because the petition for contempt was unsuccessful.

The Court of Appeals first ruled that the defense of laches was not available.  Under Tennessee procedural law, this defense must be raised as an affirmative defense.  Since the husband did not assert this defense in his original pleadings, the defense was waived.

The Court of Appeals next ruled that the trial court could enter a money judgment even without finding the husband in contempt.  The Court made clear that courts have discretion to enforce their orders in different ways, and that a finding of contempt is not a prerequisite to the court’s ability to enforce its orders.

Finally, the Court held that it was proper to award attorney’s fees.  The dissolution agreement stated that the court “shall” award attorney’s fees to a party seeking enforcement.  Even though there was no finding of contempt, the wife was still the successful party and entitled to those fees.  The trial court had reduced those fees to reflect that the wife was only partially successful, and the Court of Appeals held that this was the proper procedure.

No. W2012-00509-COA-R3-CV (Tenn. Ct. App. Feb. 19, 2013).

See original opinion for exact language.  Legal citations omitted.

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