Wife Doesn’t Get Out of Alimony By Letting Mortgage Get Foreclosed

Tennessee alimony modification case summary.

Janet Lynnette McCormick v. Donny Joe McCormick

The husband and wife in this Henderson County, Tennessee, case were divorced in 2012.  Under their marital dissolution agreement, the wife was required to pay alimony in futuro to the husband.  Instead of a dollar amount, the agreement called for her to pay the monthly mortgage payment, real estate taxes, and insurance on a property. 

In 2017, the husband filed a petition for contempt, alleging that the wife was in arrears in the amount of $66,000.  The wife countered by saying that the property in question was being foreclosed, and that as a result, the husband had reduced expenses.  She also alleged that her income had gone down.  She therefore asked for a modification of the alimony award.

A hearing was held at which it came out that the parties had subsequently agreed that the wife would pay the mortgage directly, rather than paying the money to the husband.  She fell behind on the payments and filed bankruptcy, but the husband filed no claim in the bankruptcy case.

At the time of trial, the husband had suffered a stroke and was living in a mobile home.  His only income was disability benefits.

The trial court ruled that the divorce decree imposed an alimony in futuro obligation and that the wife was in contempt.  The court set the dollar amount of the alimony at about $1,600 per month.  Because of the wife’s reduced income, the trial court lowered the obligation to $700 per month, but ordered her to pay $200 per month to cover the arrearages.  The wife then appealed to the Tennessee Court of Appeals.

The wife first argued that the trial court erred in designating the payments to be alimony in futuro, even though the agreement she signed used those exact words.  However, the appeals court dispensed with that argument because she had failed to make it in the lower court.  Therefore, the argument was deemed to be waived.

The wife next argued that the trial court should have reduced the alimony obligation even more or reduced it entirely.  Here, the wife got some sympathy from the appeals court, since the trial court had made few factual findings relating to her ability to pay.  In particular, the trial court had reduced her statement of expenses, but made no specific findings as to the reason for the reduction.  For example, the trial court had used the word “probably” in discussing some of the expenses.

For this reason, the appeals court held that the case would need to be remanded for detailed findings as to the wife’s expenses.  It directed the lower court to re-open the case for relevant testimony.

For this reason, the Court of Appeals remanded the case.

No. E2018-00175-COA-R3-CV (Tenn. Ct. App. Mar.  4,  2020).

See original opinion for exact language.  Legal citations omitted.

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