Submitted on Briefs February 2, 2017
from the Chancery Court for Shelby County No. CH-15-700 Jim
divorce case, Terry Joe McBroom appeals the trial court's
award of alimony in futuro to Kelly Loretta Folkerts McBroom
in the amount of $980 per month for three years or until
Husband began drawing his retirement pension. The trial court
ordered that once Husband began drawing his pension, which
the parties agree will happen no later than April of 2019,
the amount of spousal support will be reduced to $720. The
court further ruled that Husband's support obligation
would cease when Wife began drawing Social Security benefits.
Finding no abuse of discretion, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Jeffrey Jones, Bartlett, Tennessee, for the appellant, Terry
William A. Cohn, Cordova, Tennessee, for the appellee, Kelly
Loretta Folkerts McBroom.
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which W. Neal McBrayer and Arnold B. Goldin, JJ.,
CHARLES D. SUSANO, JR., JUDGE.
parties were married on April 17, 1999. It was the second
marriage for each. They had grown children from their prior
marriage. No children were born to their union. Husband filed
for divorce on May 26, 2015.
trial took place on May 3, 2016. The witnesses were the
parties and Wife's son. Husband was 55 years old at the
time of trial. He had worked for the City of Memphis for 32
years as a heavy equipment operator. Husband was not in good
health, having previously suffered from leukemia and a heart
attack, among other health issues. He elected to retire no
later than April of 2019. The parties agreed that this
retirement decision was irrevocable. He earned $56, 892 in
2015, and he projected that he would earn $58, 804 in 2016.
was 53 when this case was heard. She worked for most of this
seventeen-year marriage, but had been unemployed since April
of 2012. In the mid-2000s, she had an accident and broke her
leg in five places. As a consequence of her injuries in the
accident, Wife developed an addiction to pain medication.
Later, in September of 2013, she was in a car accident and
suffered another serious leg injury. She testified that the
prescription medications were insufficient to control her
pain. In early 2015, she began using heroin. At trial, Wife
stated that she had gone to inpatient drug treatment. She was
attending AA meetings and trying to stay clean and sober. She
testified that she earned a small income cleaning a couple of
houses. Wife's statement of income and expenses filed
shortly before trial showed an income of $185 per month and
expenses of $1, 972, a monthly deficit of $1, 787. She
testified that she had applied for Social Security disability
benefits and had been denied, but also indicated that a
decision about her eligibility for such payments was still
pending at time of trial.
conclusion of the trial, the court orally stated its
decision, dividing the marital estate and awarding Wife
alimony in futuro. Husband has not appealed the trial
court's division of the marital estate. Regarding the
alimony award, the trial court initially stated it would
order Husband to pay 20 percent of his gross monthly income,
explaining as follows:
[S]tarting in January of '17, the husband is to pay 20
percent of his gross payment, the gross salary. It's
forty-nine hundred now. I'm not going to put a number on
it. I'm just going to say he needs to pay 20 percent to
his wife until she ‒ that's either of his gross
payment and, if he retires, for instance, and that goes down,
then the payment goes down.
In April '19, that amount is going to go down because
she's going to get 20 percent of his monthly pension
check until she is eligible for Social Security, either
Social Security benefits based on age or Social Security
benefits based upon health conditions. In other words, if she
gets a disability payment ‒ let's say for some
reason she gets her disability approved next month, this
gentleman doesn't pay anymore. I mean that's just the
way that works. She ages in at sixty-two and gets Social
Security benefits, he doesn't pay anymore. It's over
at that time. It's either 20 percent of his paycheck,
gross paycheck, or 20 percent of his pension amount.
counsel objected, stating, "I think there's a line
of cases that you can't set support by percentage."
The trial court responded, "If you feel that I need a
motion to reconsider, then you'll show me the case law on
that." After Husband's counsel did exactly that, the
trial court agreed with his argument that a support award
based on a percentage of the obligor's income was
inappropriate. The court then modified its ruling.
27, 2016, the trial court entered its final judgment, which