Dentist Alimony Reduced from $6K / Mo to $3.9K Reversed

Tennessee alimony modification case summary.

Leann Barnes v. David Ellett Barnes

The husband and wife in this Bedford County, Tennessee, case had been married for over 25 years when the wife filed for divorce in 2009.  A trial was held in 2011, and the wife was initially granted alimony of $6,000 per month.  There was an April 2014 appeal in which this amount was reinstated, and additional issues were addressed in an October 2016 appeal.

While the second appeal was still pending, the husband made a motion to modify or terminate his alimony obligation, on the grounds that he had recently had back surgery and carpal tunnel surgery.  He alleged that he was no longer able to practice dentistry.  He began receiving disability benefits, and the wife argued that he was able to pay whether or not he was working.  The wife also filed a petition for contempt, and by the time of hearing, she claimed that she was owed $95,000 in unpaid alimony.

Prior to the divorce, the husband’s income had been about $500,000.  At the time of the hearing, he was receiving a disability payment of about $19,000 per month, an amount which was not subject to federal income tax.  He had also received social security disability benefits of about $2,800 per month.  While the motion was pending, he sold his dental practice for $950,000.

The husband also offered the expert testimony of accountant Mike Hallum, who testified that the husband’s average income had gone from $500,000 to about $333,000.

The trial court made an order finding the husband in contempt for the past due amounts, but also granting his motion to reduce the alimony in the future.  It reduced the award to $3,900 per month, retroactive to December 2015.  The wife then brought a third appeal to the Tennessee Court of Appeals.

The appeals court noted that alimony modifications can be made on a showing of substantial and material change of circumstances.  The court pointed out that the real issue in this case was whether the change in this case was substantial.  It pointed out that even a reduction in income is not a substantial change if other assets are available to pay.

The appeals court noted that the lower court had focused on the husband’s gross income, without focusing on the tax consequences.  Even though there was a reduction of 35%, that did not equal a 35% reduction in ability to pay.  The husband had paid an average of about $150,000 per year in taxes when he was a dentist, but the disability income was not taxable.

After carefully reviewing the evidence, the appeals court concluded that the record did not support the lower court’s finding.

After addressing the issue of attorney fees, the Court of Appeals reversed the lower court’s judgment and remanded the case.

No. M2018-01539-COA-R3-CV (Tenn. Ct. App. Jun. 12,  2019).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Alimony Modification in Tennessee Law | How to Modify Alimony.