The Tennessee Supreme Court is about to decide a lawsuit that could open the door to the awarding of more alimony in divorce cases, even for spouses who already make good livings on their own.
In the case, the trial court originally denied alimony for Johanna Gonsewski, who was divorcing her husband Craig in 2009 after 21 years of marriage. But on appeal in an unusual ruling, she was awarded $15,000 a year in alimony for the rest of her life or until she remarries, even though she earns $72,000 a year as a state employee.
The appeals court decided to award alimony to prevent Johanna Gonsewski’s standard of living from dropping below that which she enjoyed during her married life. Her husband earned $100,000 a year as an accountant but also sometimes was given bonuses by his employer. He received a $30,000 bonus in the year of their divorce.
In the unanimous opinion of the Court of Appeals in Nashville, Judge Frank Clement Jr. wrote the awarding of alimony to Gonsewski was necessary “to mitigate the harsh economic realities of divorce.”
Johanna Gonsewski “is the economically disadvantaged spouse,” Clement wrote, and her “earning capacity will not permit her to maintain a standard of living after the divorce that is reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the husband.”
The Supreme Court heard arguments in June from attorneys in the lawsuit and should rule within a few months. During the arguments, Justice Sharon Lee, one of three women who now make up a majority of the court, asked Craig Gonsewski’s lawyer to explain why Johanna Gonsewski shouldn’t receive alimony for life.
“Clearly, she was going to be disadvantaged economically after this divorce,” Lee said. “Why shouldn’t she have gotten some alimony to help equalize the parties?”
The case is unusual on several fronts, family law experts say. Divorce court judges have broad discretion to determine whether alimony is awarded, and their decisions are not often second-guessed by appeals courts.
In addition, Tennessee judges rarely award alimony for life, especially to spouses with their own careers. Rather than alimony, judges typically award marital property to disadvantaged spouses.
Permanent alimony is usually reserved for stay-at-home spouses who have been married for a long time, experts say. Courts generally consider the need of the disadvantaged spouse and the ability of the other spouse to pay. But in this case, maintaining the wife’s marital standard of living was the paramount factor.
“This wife is employed. What has raised attention is that she makes a good living. But the court was looking at that marital standard of living. It’s not something Tennessee has emphasized before now,” said Kelly Murray of Vanderbilt University Law School.
“It looks like it’s easier to at least challenge the awarding or denial of alimony based on this opinion. That’s noteworthy,” Murray said. “If this case is affirmed, it could open the door to more challenges. You could challenge it in the past but, before this opinion, you were highly unlikely to get anywhere. You were most likely stuck with it.”
Rose Palermo, a prominent Nashville divorce lawyer, said the case could give previously out-of-luck spouses new hope for alimony.
When Palermo heard about the Gonsewski case, she said, “I was surprised that the lady got any alimony. If she’d been my client, I would have told her she probably wasn’t going to get any.”
“If they affirm this case, it’ll be pretty big,” she added. “If they uphold this case, it’ll give spouses who want alimony more leverage. It will encourage more people to push for alimony. They’ll have this Supreme Court case to wave around.”
It’s the second family law case that the high court has agreed to hear this year. Court watchers say it’s unusual for the justices to take such cases.
In the second case, the court will decide whether a man has legal grounds to sue for emotional distress for being tricked into supporting a child that turns out to have been fathered by someone else.
A Maury County man paid $26,000 in child support before obtaining a DNA test that proved he wasn’t the biological father of his ex-wife’s daughter. The trial court awarded him $100,000 in damages for emotional distress.
In the trial, the man testified he had a vasectomy during his marriage. He said he never would have undergone the procedure if he thought he already hadn’t fathered a child.
“It hurts to know you’ll never have a child,” he testified. “The family name won’t be carried on. It’s just a hurt you can’t explain.”
The Tennessee Court of Appeals struck down the award, ruling that since the man sued only for fraud and misrepresentation, he couldn’t collect for emotional distress.