Ex-Husband’s Assets Considered in TN Alimony Modification
Tennessee law case summary on alimony modification in Tennessee divorce and family law from the Tennessee Court of Appeals.
Mary Anne Osesek v Michael W. Osesek – Alimony Modification
In the case of Mary Anne Osesek and Michael W Osesek, the former husband filed a petition to terminate or modify the amount of alimony in futuro owed as a result of a post-divorce decrease in his income and the fact that the former wife had obtained employment. The trial court ruled that although it did not consider the former husband’s loss of employment constituted a substantial and material change of circumstances because other assets of the former husband afforded him the ability to pay the alimony payments. The trial court dismissed the petition. The appeals court received a request to review this decision.
At the time of the divorce, the former husband was paying $5,500 per month to the wife. At the time of the divorce, he was earning $250,000 annually but lost this job and has been unable to find employment since that time. He also alleged that the wife obtained part-time employment since the divorce. The former wife denied the salient allegations of the former husband’s petition.
The appeals court considered whether the change in employment warranted a substantial or material change of circumstances. The appeals court said that “substantial change” occurs when the ability to pay the support is not possible. The appeals court ruled that even with the loss of employment, that there was not substantial and material change in circumstances. Due to the assets Mr. Osesek maintained, he had the ability to continue to pay the awarded alimony.
In addition to this, the former husband stated that the wife received the home and substantial assets in the divorce. He claimed she should have to downsize from a house of 4,000 square feet to one that is smaller since only she lives in the home. However, the former wife contended that selling her current home and purchasing a new home would not reduce her living expenses and that the former husband was also awarded financial assets as a part of the agreement in the divorce.
The Tennessee Court of Appeals affirmed the holding that Husband’s assets are available to satisfy his alimony obligation and the award of attorney fees to Wife, vacated the dismissal of the petition, and remanded for further consideration.
“Inasmuch as the parties and the court in this case did not have the benefit of the holding in Gonsewski when Mr. Osesek’s petition to modify or terminate the alimony in futuro was heard, we deem it appropriate to remand the case for the court to consider whether a modification of alimony is warranted under the principles announced therein, which may include consideration of the likely duration of Mr. Osesek’s assets. Our decision to remand should not be construed as expressing an opinion as to whether a modification is warranted in any respect.”
Court of Appeals of Tennessee at Nashville, Appeal from the Chancery Court for Sumner County, No. 2006D128, Tome E. Gray, Chancellor.
Disclaimer: See original opinion for exact language. Legal citations omitted.
Memphis divorce lawyer, Miles Mason, Sr., JD, CPA practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC, which handles Tennessee family law matters including divorce, child support, alimony, prenuptial agreements, child custody, parental relocation, child support modification, and alimony modification.
