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Malkin v. Malkin

Court of Appeals of Tennessee, Memphis

March 26, 2015

KAREN ABRAMS MALKIN
v.
REED LYNN MALKIN

Session Date February 24, 2015

Direct Appeal from the Chancery Court for Shelby County No. D27924 Walter L. Evans, Chancellor.

Lori Renee Holyfield, Bartlett, Tennessee, for the appellant, Karen Abrams Malkin.

Sarah Johnson Carter and Robert Alan Wampler, Memphis, Tennessee, for the appellee, Reed Lynn Malkin.

Brandon O. Gibson, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J., joined.

OPINION

BRANDON O. GIBSON, JUDGE

I. Facts & Procedural History

Reed Lynn Malkin ("Husband") and Karen Abrams Malkin ("Wife") were married for approximately nineteen years before they were divorced on April 27, 1998. Wife was granted a divorce based on Husband's inappropriate marital conduct. Wife was also granted custody of the parties' minor child. At the time of the divorce, Husband was a practicing attorney. It is not clear where Wife worked, but her social security earnings statement reflects that she earned $21, 349 in 1998. The statement also indicates that Wife earned no income between 1979 and 1987, which includes a lengthy period during the marriage. Regarding alimony, the final decree of divorce stated:

That the Court finds, after considering all of the relevant factors set forth in T.C.A. § 36-5-[121], [1] such as the length of the marriage, [Wife's] age, [Wife's] education, and other relevant factors, that she is so economically disadvantaged that rehabilitation is not feasible or possible, so that the Court awards [Wife] alimony in futuro in the sum of $3, 500 per month, which shall be paid beginning April 1, 1998, and the first of every month thereafter until her death or remarriage[.]

Five years after the divorce decree was entered, in 2003, Husband filed a petition to modify or terminate his alimony obligation. Husband claimed that he had experienced an 88% decrease in income from his law practice since the entry of the divorce decree, and he claimed that Wife had an earning capacity that would enable her to maintain a reasonable standard of living. Thus, Husband claimed that a substantial and material change in circumstances had occurred to warrant a reduction in his alimony obligation. Following a hearing, the trial court entered an order granting Husband's petition on January 20, 2004. The trial court found that Husband's income was approximately $273, 000 at the time of the divorce and that it had averaged $221, 894 during the past five years, for a reduction of 18 percent. The trial court also found that Wife's monthly expenses had decreased by approximately 25 percent (from $6, 248 to $4, 705). As a result, the trial court modified the final decree of divorce to reduce Husband's monthly alimony obligation by 18 percent, from $3, 500 to $2, 870, beginning February 1, 2004.

On February 22, 2007, Husband filed a petition for further modification or termination of his alimony obligation. In response, Wife filed a counter-petition to increase the alimony obligation. These petitions were litigated over the next three years. Husband filed an amended petition in 2009, and the trial court eventually heard all of the petitions over six days in late 2009. The trial court entered an order on April 12, 2010, describing the "numerous days of testimony" and "excessive amount of legal energy, talent, and expenses consumed and invested into this proceeding on both sides[.]" The court found that Husband's average income over the past five years from his law practice, interest, and dividends from investments was $265, 397.20, almost as much as he earned at the time of the divorce. The court found that Wife's "relevant monthly expenses" were approximately $6, 200 per month, again comparable to the amount that existed at the divorce. However, the court also found that Wife was "capable of working part-time" and was in fact earning about $1, 300 per month from part-time employment. The court also noted that Wife, age 64, was qualified to receive social security benefits. The court ultimately concluded that although Wife needed "continued financial support" from Husband, the alimony obligation "should not be disturbed considering the additional sources of income available to Former Wife" since the entry of the previous order setting support at $2, 870.

Husband filed the instant petition to modify three years later, on May 31, 2013. In this petition, Husband alleged that his income from his law practice had substantially decreased over the past five years and that he had recently retired. Husband stated that he was drawing social security and funds from pension. Husband also noted that Wife was drawing social security benefits. For these reasons, he claimed that his alimony obligation should be further reduced or terminated.

Following a hearing, the trial court entered an order on December 16, 2013, granting Husband's petition and modifying the alimony obligation. The trial court found that Husband had retired and "suffered at least a 2/3's decrease in income and therefore the alimony in futuro heretofore awarded should be modified to the sum of $1, 035.00 per month effective January 1, 2014." Wife timely filed a notice of appeal.

II. Issues Presented

Wife presents the following issues, as slightly reworded, for review on appeal:
1. Did the trial court err in granting Husband's petition for modification of alimony and/or in determining the appropriate amount of alimony that Husband should be ...

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