JOHANNA L. GONSEWSKI v. CRAIG W. GONSEWSKI
The Supreme Court of Tennessee, June 2, 2011 Session
Appeal by Permission from the Court of Appeals, Middle Section
No. M2009-00894-SC-R11-CV - Filed September 16, 2011
The Tennessee Supreme Court granted a review in this divorce case to determine whether alimony in futuro should be awarded to a spouse who has a college degree, good health, a stable work history in a relatively high paying job, and a lack of demonstrated need for such long-term alimony. The Court of Appeals affirmed the trial court's division of the marital estate, but reversed the trial court's judgment regarding spousal support and ordered the Husband to pay the Wife alimony in futuro in the amount of $1,250 per month until her death or remarriage. The Court of Appeals also awarded the Wife, in the form of alimony in solido, her attorney's fees and expenses, both at trial and on appeal. The Supreme Court concluded that the award of alimony in futuro and the award of attorney's fees and expenses was inappropriate in this case, and the wife failed to demonstrate that transitional alimony was appropriate. The Supreme Court therefore reversed the Court of Appeals and reinstated the trial court's judgment.
The Gonsewskis were married twenty-one years and both were forty-three years old at the time of trial. Both had earned college degrees and worked throughout the marriage. Neither spouse had a physical or mental condition that influenced the alimony decision and had no minor children remaining that made employment outside the home undesirable or difficult. Wife received slightly more than Husband in property settlement. Wife earned $72,000 a year (plus a longevity bonus), had been employed by the State of Tennessee for at least 16 years, and worked in the field of information technology. Husband earned an annual $99,900 base salary plus bonuses that were contingent upon his and his employer's performance. The bonuses in the two years prior to the divorce were approximately $34,000 each, but husband testified that the bonuses were likely to decrease due to the economic downturn and the completion of a long-term project.
The trial court determined that Wife was "not entitled to Alimony in Futuro or alimony for rehabilitative purposes," explaining that she had a stable job with the State, earned a good income, and that her share of the equity in the marital home was sufficient to find another residence. The Court of Appeals reversed the trial court on the issue of spousal support and ordered Husband to pay Wife alimony in futuro in the amount of $1,250 per month until her death or remarriage. The Court of Appeals reasoned that, although there was no need for economic rehabilitation given that Wife was a college graduate and had a steady career, alimony in futuro was "necessary to mitigate the harsh economic realities of divorce" due to the disparity in the parties' incomes.
No evidence was presented at trial regarding the prospect or feasibility of Wife making any "reasonable effort" to alter her earning capacity to permit her standard of living after the divorce to be reasonably comparable to the standard of living during the marriage. Additionally, little evidence, other than their income and expense statements, was presented concerning the parties' standard of living during the marriage - whether lavish, frugal, or somewhere in between. Nor was evidence presented regarding the post-divorce standard of living expected to be available to Husband.
The Supreme Court determined that Wife had the ability to support herself and, absent an abuse of discretion, was not inclined to second-guess the trial court's decision not to award alimony in futuro. Recognizing that Husband's income may continue to exceed Wife's by some extent, and that Wife's post-divorce lifestyle may decline to some extent, the Supreme Court stated that the economic realities are such that it is likely that Husband's standard of living will also decline as he establishes a separate household without Wife's income. The Supreme Court reiterated that "[t]wo persons living separately incur more expenses than two persons living together. Thus, in most divorce cases it is unlikely that both parties will be able to maintain their pre-divorce lifestyle once the proceedings are concluded." Kinard, 986 S.W.2d at 234.
Comment: Wife did not attempt to prove a need for long-term support such as that contained in my "Alimony Needs and Ability to Pay Analysis" wherein I demonstrate the incomes and expenses of both spouses over their remaining lifetimes based on the standard of living enjoyed during the marriage along with the realities of maintaining two separate households. I incorporate earnings from the divided investment and retirement accounts and demonstrate overall cash flow shortages and/or wealth accumulation over time. Click here to see my TN Bar Journal article: "Breakin' Up Is Hard To Do."