58 Year Old TN Wife’s Alimony In Futuro Cut to $1,050 / Month

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

Marsha Bordes v Julian Bordes – Tennessee Alimony Modification Law

In the trial of Marsha Bordes and Julian Bordes, the husband filed a petition to modify the amount of alimony in futuro set in the divorce decree. A reduction in his income and his declining health were cited as reasons for the modification. The trial court rejected his request and the husband appealed it.

The parties married in June of 1999. The Marital Dissolution Agreement provided that the husband would pay alimony in futuro of $1,700 per month until child support for the oldest child ended. At that time, the payment would increase to $2,300 until the child support for the youngest child ended. At that point, it would reduce to $2,000 per month. The husband filed a petition in January of 2008 requesting modification. At that point, he was paying $2,000 per month as the child support payments had ended.

The husband stated he owned an Orkin pest control franchise at the time of the divorce but had experienced health problems since that point, which limited his ability to work. He sold the franchise in 2009 as a result and purchased a restaurant with his current spouse. He received $400 every two weeks from the restaurant and $1,100 per month from a retirement account. He believed these circumstances warranted a reduction in the amount of alimony he was paying.

The trial court ruled that the economic downturn and his health concerns were not unforeseeable at the time of the award of alimony. It also noted that with the sale of his business, he would have significant funds to pay the alimony. It noted it was the husband’s choice to invest in the restaurant and that this did not justify penalizing the wife.

The husband appealed this decision. Alimony in futuro is awarded as a way of providing long-term support until death or remarriage. To seek modification, the party must establish a change in circumstances that is substantial and material and that the modification is warranted.

The appeals court did not find any facts to back up the claim that the economic downturn lead to the court’s determination. The Social Security Administration earnings record indicated that the husband earned $121,823 at the time of the divorce in 1999 and that, in 2007, he earned $9,000. Based on this, as well as the fact that the husband could show how the sale of the pest control business was not lucrative, indicated that the husband’s income had dropped dramatically. This confirmed the substantial change in circumstances.

The appeals court then considered whether the trial court abused its discretion in this case. The trial court determined the husband’s earning capacity to be between $75,000 and $100,000 per year. The appeals court did not agree with this noting he receives $1900 in income per month, is 58 years old at the time of the hearing and has various health concerns. His monthly expenses are $2,498. Based on these factors, as well as the value of the restaurant business and Orkin business, the appeals court ruled the husband’s earning capacity was $75,000.

The wife testified that she was 58 years old and dependent on the alimony, as she was not working. She had monthly expenses of $2,438 and numerous health concerns. The trial court found the wife underemployed and could earn $20,000 per year. The appeals court did not find any facts to substantiate how the lower court reached that finding.

The appeals court ruled that the wife’s expenses are $950 less than what the husband is providing. As such, it found that there was even evidence to warrant a change in the alimony award. It reduced alimony to $1,050 per month.

NO M2010-02036-COA-R3-CV, September 30, 2011.

See original opinion for exact language.  Legal citations omitted.

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. Also, see the MemphisDivorce.com Tennessee Family Law Blog and its Alimony category. Also, download the free e-Book, Your First Steps: 7 Steps Planning Your Tennessee Divorce.