1

Bogan retired three weeks before his sixtieth birthday; therefore, I agree that his decision to retire should be

subject to the majority analysis. I concur separately, however, because the reach of the majority holding will make it

difficult, if not impossible, for this Court to later revisit this issue to avoid unduly burdening older workers.

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

September 5, 2001 Session

RICHARD THOMAS BOGAN v. DORIS MAE BOGAN

Appeal from the Court of Appeals, Eastern Section

Chancery Court for Sullivan County

No. 21988(T) John S. McLellan III, Chancellor

No. E1998-00060-SC-R11-CV - Filed November 8, 2001

ADOLPHO A. BIRCH, JR., J., concurring and dissenting.

I write separately in this case to address a single issue of paramount significance here: the

decision to retire and just how much scrutiny it should receive in the factual context of the case under

submission. Assuredly, I concur in the result reached by the majority, which reinstates the trial

court’s reduction of Bogan’s support obligation. I disagree, however, with the breadth of the

reasoning used to reach that result. In my view, the decision to retire, particularly among workers

nearing the ends of their careers, is personal, private, and nearly sacrosanct. Thus, I am compelled

to clarify that I would limit the majority analysis to those cases involving obligors who have not yet

reached the age for Social Security eligibility, presently age 62. In cases involving obligors who

decide to retire after age 62, I would not subject the retirement decision to the analysis embraced by

the majority.1

The majority establishes the rule that a retirement decision must be objectively reasonable

in order for it to constitute a substantial and material change upon which a modification of support

may be based. To the extent the majority holds that we should not require any specific standard for

showing that the retirement was taken in good faith, other than to require that the primary purpose

of the retirement cannot be to defeat the support obligation, I agree. I differ, however, with the

majority position that those obligors who have reached the final years of their careers should bear

the burden of showing that their retirement satisfies any objective standard. Though I disagree,

obviously, with Justice Holder’s ultimate conclusion in her dissent, I share her concerns that the

majority inquiry into objective reasonableness may be too “nebulous” to promote consistency and

fairness among the trial courts who will be expected to apply it, at least in cases involving workers

nearing the ends of their careers. Among the factors that motivate an individual to retire may be

considerations so intangible, emotional, personal, and intimately subjective that it would be
2

If the age for Social Security eligibility were to be changed in the future, I would of course modify my analysis

to take that new age into account.

3

Other courts have followed a comparable analysis. See In re Sinks, 204 Cal. App. 3d 586, 588 (Cal. Ct. App.

1983) (“We conclude that the trial court found [the obligor’s] retirement was motivated by his desire to avoid paying

spousal support, and, therefore, the refusal to terminate support was not an abuse of discretion.”); Misinonile v.

Misinonile, 645 A.2d 1024, 1027 (Conn. App. Ct. 1994) (“Our review of the record discloses no basis for a finding that

the defendant retired for the purpose of avoiding or reducing his obligation. . . . On the basis of these facts, we conclude

that the finding of the court, that there was a substantial change of circumstances, was neither unreasonable nor

constituted an abuse of discretion.”).

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impossible to quantify those considerations in an objective analysis. This is even more certain to be

true as the individual nears the long-expected promise of retirement. 

In place of the “objectively reasonable” standard, I would substitute a “presumptively

reasonable” standard in cases involving retirement decisions made by those persons over 62 years

of age.2

 Under this standard, retirement decisions made by persons over age 62 would be presumed

reasonable in the alimony modification context, and the burden would be on the obligee to make a

threshold showing that the obligor was acting in bad faith by retiring solely to defeat payment of

alimony. I emphasize that, upon such a threshold showing, the presumption of reasonableness would

be rebutted, and because the retirement decision constitutes but a single part of a greater fabric, the

trial court would move on to complete the rest of the alimony modification analysis. Through the

use of this “presumptively reasonable” standard, the retirement decisions of workers nearing the

ends of their careers would not be unduly burdened by being subjected to “stricter scrutiny,” whether

by way of the majority “objectively reasonable” analysis or by use of the nine factors proposed in

Justice Holder’s dissent. 

When the case under submission was before the Court of Appeals, Judge Susano, writing in

dissent, properly and thoughtfully noted that “there is not one iota of proof” that Bogan retired in

order to avoid his obligation to pay alimony to his former spouse. In the absence of such proof, our

inquiry should be limited to Bogan’s ability to pay. The Superior Court of Pennsylvania reached a

similar conclusion in Commonwealth ex rel. Burns v. Burns, 331 A.2d 768 (Pa. Super. Ct. 1974).

There, the court held that voluntary retirement would be a ground for reduction of alimony if not

done for the sole purpose of reducing the funds available for alimony payments. See id. at 770. The

court stated, “If the evidence demonstrates that [the obligor] retired solely to extinguish or reduce

his earning for the purpose of avoiding support payments . . . , the lower court would then be

justified in setting a support order based on his pre-retirement income.” Id.3 I would apply this

reasoning in Tennessee cases involving obligors over age 62.

Because I believe that the retirement of workers nearing the ends of their careers should be

presumed reasonable in the absence of proof by the obligee that the sole purpose of the retirement

was to avoid the payment of alimony, I am constrained to dissent. Beyond the good faith inquiry,

we have neither the right nor the standard by which to gauge whether the retirement of workers

nearing the ends of their careers is “objectively reasonable.” A standard of presumptive
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reasonableness would avoid this quandary. Additionally, it would free trial judges from the complex

and unpleasant task of telling a person that his or her brightest hope for the future, retirement, is not

objectively reasonable. 

___________________________________ 

ADOLPHO A. BIRCH, JR., JUSTICE