Ex-Husband Can Stop Transitional Alimony When Ex-Wife Cohabitates

Tennessee alimony modification and termination divorce case summary.

Dale Robert Scherzer v. Milissa Marie Scherzer

CONCURRING OPINION

The husband and wife in this Williamson County, Tennessee, case were divorced in 2012 after 22 years of marriage, when the court approved their marital dissolution agreement, which included a permanent parenting plan.

The agreement provided that the husband would pay $2,000 per month in transitional alimony for 96 months.

In 2013, the wife announced on Facebook her engagement to a new fiancé, and in 2013, the two of them purchased a home together as joint tenants.  They had been living together and jointly purchased a new vehicle.

In 2015, the husband filed a petition to modify the alimony under the Tennessee cohabitation statute.  The wife argued that the statute did not apply, because the parties had a made a marital termination agreement, and that only the terms included in the contract itself would apply.  Since the agreement was silent on cohabitation, the wife argued, the husband still had an obligation to pay.

A trial was held, and Judge Michael W. Binkley ruled that the statute applied.  Under the statute, there is a presumption that a cohabitating spouse is being supported by the other party.  Judge Binkley held that the wife had not rebutted this presumption, and thus ended the husband’s alimony obligation.  The husband was also awarded attorney fees.

Dissatisfied with this turn of events, the wife then appealed to the Tennessee Court of Appeals.

The appeals court first noted that this was essentially a contract case, since the marital dissolution agreement was an enforceable contract between the parties.  And the key issue in any contract case is to determine the intent of the parties.  The issue, therefore, was whether the cohabitation statute should be regarded as part of the contract.

The wife argued that because the contract didn’t contain a cohabitation clause, that one should not be implied.  But the husband argued that because the contract used terms such as “transitional alimony” which mirrored the language of the statute, the intention of the parties was to have alimony payments in accordance with Tennessee law.

The appeals court agreed with the husband, and looked closely at the definition of “transitional alimony” in the statutes.  It noted that the purpose was to “smooth the transition of a spouse from married to single life.”

The wife had cited a number of cases that appeared to support her position.  But the appeals court pointed out that these cases referred to alimony in futuro rather than transitional alimony.  It pointed out that the purposes of the two types of alimony were different, and that those cases didn’t apply for that reason.

After closely scrutinizing the contract, the appeals court agreed with the lower court that the cohabitation statute applied.

It then turned to the issue of whether the wife had rebutted the statute’s presumption.  After examining the evidence, it agreed that she had not.  It found that the financial effect of the cohabitation was such as to negate the wife’s ongoing need for transitional alimony.

The wife fared better when it came to the issue of attorney fees.  The appeals court reversed the award, based upon its finding that the wife did not have a sufficient ability to pay.

Judge W. Neal McBrayer concurred with  the majority ruling, which had been authored by Judge Thomas R. Frierson, II.  In Judge McBrayer’s opinion, it was not necessary to reach the issue of attorney fees, since he believed that they were inappropriate in a case of this type.

No. M2017-00635-COA-R3-CV (Tenn. Ct. App. May 24, 2018).

See original opinion for exact language.  Legal citations omitted.

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