Tennessee Ex-Husband’s Cameras and Flights Over Boyfriend’s House Didn’t Prove Cohabitation by Ex-Wife

Tennessee alimony case summary on alimony modification due to cohabitation after divorce.

Regina D. Wiser v. Cyrus W. Wiser, Jr.

After 23 years of marriage, the husband and wife in this Tennessee case were divorced in 2005.  At the time of the divorce, their two children were 9 and 13 years old.  Under the original decree, the husband was to pay alimony in varying amounts until 2017, at which time the wife would become the owner of two buildings that would provide her income.  In 2007, the wife asked for an increase in alimony which was initially denied.  However, after an appeal to the Tennessee Court of Appeals, the amount of alimony was increased.

In 2011, the husband went to court asking for a termination of alimony.  He argued that his income had decreased and that the wife was cohabitating with her boyfriend.  After a four day trial, the trial court concluded that the wife was not cohabitating with anyone, and that the alimony should remain the same.

The trial court had found that the wife made monthly trips to the boyfriend’s second home in Florida for 4-6 days, but that she did not pay his bills, and that this activity did not rise to the level of cohabitation.

The husband then appealed to the Tennessee Court of Appeals and argued that the evidence preponderated against the lower court’s finding.  The appeals court therefore reviewed the evidence.

The wife had testified that she was involved in a romantic relationship, but that both she and her boyfriend maintained their own homes in Murfreesboro.

The husband had gone to great lengths to prove his allegations.  He employed people to install cameras, to drive past the Florida house, and even to fly an airplane over it.  He showed that the wife had spent about 108 out of 294 days at the Florida house.  After filing his petition, this dropped to 61 out of 386 days.  The husband introduced evidence that the wife left a few articles of clothing at the Florida house.

The wife and boyfriend both testified that the relationship had ended a few weeks before trial, largely because of all of the cameras, airplanes, etc.  The appeals court noted that an obligor spouse cannot rely on cohabitation if the cohabitation ceased prior to the trial.

Even though the husband’s evidence might have shown that the wife had spent more than six days in Florida, the Court of Appeals agreed with the lower court that the evidence was not sufficient to prove cohabitation.  For those reasons, the appeals court affirmed the finding.

The court also examined the husband’s income and agreed with the lower court that any change in income did not warrant a modification of alimony.  For these reasons, the Court of Appeals affirmed, and remanded the case to determine the wife’s attorney fees and costs.

No. M2013-02510-COA-R3-CV (Tenn. Ct. App. Apr. 30, 2015).

See original opinion for exact language.  Legal citations omitted.

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