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Posted by: Tanja Trezise on Sep 27, 2013

Court: TN Court of Appeals

Attorneys 1:

Carl R. Ogle, Jr. and Scott Justice, Jefferson City, Tennessee, for the appellant, José Emmanuel Hernandez.

Attorneys 2:

Douglas R. Beier, Morristown, Tennessee, for the appellee, Barbara Ann Hayward, formerly Hernandez.

Judge(s): SUSANO

The issues in this divorce case are whether the trial court correctly ordered husband to pay wife $600 per month in transitional alimony for 36 months, child support in the amount of $253 per month, and $4,000 of the wife=s attorney=s fees, the latter as alimony in solido. At the time of trial, husband had been unemployed and actively seeking work for about one year. The trial court found that his income was zero. Wife did not argue that husband was voluntarily unemployed or underemployed, and the trial court made no such findings. The proof at trial establishes that many of the statutory factors supporting an award of alimony in futuro B including the need of the wife, duration of the marriage, i.e., 20 years, the parties= relative earning capacities, wife=s contributions to the marriage as homemaker and parent, and wife=s health B were demonstrated. Husband=s current ability to pay, however, is quite limited because of his involuntary unemployment and zero income. Consequently, we modify the transitional alimony award to $50 per month, but designate it as alimony in futuro. The difference in husband=s income, i.e., $1,191.66 per month, at the time his child support obligation was set and his income, i.e., zero, at time of trial likely supports a finding that there is a significant variance between the current support order of $253 and the amount of the proposed presumptive modified support order. Accordingly, we vacate the trial court=s order refusing to modify his child support obligation and remand for a recalculation of child support. We affirm the judgment of the trial court in all other respects.