1 Bogan ret ire d thre e weeks bef ore hi s si xti eth bi rthda y; there fore , I agree that his deci sion to re ti re s hould be sub ject to th e m ajority analy sis. I con cur se para tely, ho we ver, b ecau se the r each of the ma jority hold ing w ill mak e it difficult, if not imp ossible, for this Co urt to later revisit this issue to avoid und uly bu rdenin g older w orkers.



### IN THE SUPREME COURT OF TENNESS EE

AT KNOXVILLE Septembe r 5, 2001 S ession
RICHARD THOMAS BOGAN v. DORIS MAE BO GAN
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

A DOLPHO A. B IRCH , J R ., J., concurring and dissenting.

I wr ite sepa rately in this case to address a single issue of para mount significance here: the decision to retire

and just ho w much sc

rutiny it should receive in the factual context of the case under submission. Assuredly, I concur in the result reached by the majority, which re

instates the trial court’s reduction of Bogan’s support obliga tion. I disagre e, however, with the breadth of the reasoning used to reach that result. I n my view, the

decision to retire, particularly

among workers nearing the ends of their careers, is personal, priva te, and nearly

sacrosanct. Thus, I a

mcompelled to clarify tha

tI would limit the majority analysis to those case s involving obligors who have not ye t reached the age for Social Security elig ibility, presently age 62. In c ases involving obligors who decide to retire after

age 62, I would not subject the retirement decision to the analysis embra ced by th e m aj or it y. 1 The major

ity e stablishe s the rule

that a retirement decision must beobjectiv ely reasona ble in order f or it t o cons titu te a su bstan tial and ma teria l chan ge upon which a modification of support may be based. To the extent

the major

ity holds that w e should

not require any

specific standard for showing that the retirement was taken in good fa ith, other than to require tha

t the prima

ry purpose of the retirement cannot be to defeat the support obliga tion, I agree . I differ, howe ver, with the majority position that those obligors who havereached the final years of their careers should bear the burden of showing that their retirement satisfies any objective standard. Though I disagree, ob vi ou sl y, 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 fairne ss among th

e trial c ourts who

will be expected to a

pply it, at least in cases involving workers nearing the ends o f their c areer s. Among the factors that m

otivat e an individual to retire may be
con sid erations so intangible, emotional, personal, and intimately subjective that it would be2 If the age for Social Securi ty el igi bil it y were t o be changed i n the f uture , I would of

cou rse m odif y m y an alysis to tak e that n ew age in to acc oun t.

3 Other court s have f

oll owed a com para ble an alysis. See In re Sinks , 204 Cal . App. 3d 586, 588 (Cal . Ct . App. 1983) (“We co nclude that the trialcourt fou nd [ the o bligo r’s] retire me nt w as m otiva ted b y his desi re t o avoid pa ying spousal support , and, ther efore , the ref usal to term inate su ppo rt wa s not a n ab use o f discre tion.” ); Misinoni le v. M isinon ile , 645 A.2d 1024, 1027 (Con n. App. Ct. 1994) (“Our re view of the rec ord discl oses no basi s for a f inding that the defendant

ret ire d for t

he purp ose of avoi ding or reduci ng his obli gati on. .
. . On the bas is of the se f acts , we conclude thatthe fi nding of the court , that there was a s ubs tantial change of cir cumstanc es, was nei ther unreas onable nor constituted an abuse of discretion.”).
-2- impossible

to quantif

y those consi derations in an obj ective a naly sis. This iseven mor

e certa in to be true as the individual nears the long-expected promise of re tirement.

In place of

th e “object

ively reasona ble” sta ndard, I would subs titute a “

presumpt ively reasonable” standard in cases involving r etirement 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
reasona blein the alimony modification context, and the burden would be on the obligee to make a threshol dsh ow in g t ha t t he ob li go r w as ac ti ng in ba d f ai th by retiring solely to defeat pay

ment of al im on y. I emphasize that, upon such a threshold showing , the presumption of reas ona bleness w ould be rebutted, and because the retirement decision constitutes but a single part of a g reater fabric, the trial court would move on to complete the rest of the alimony modification

analysis. Throug

h the
useof this “p

resumptively

reasona ble” sta ndard, th e retire ment dec isi o ns of workers nearing the ends of their careers would not be unduly burdened by be

ing subjected to “stricter scrutiny ,” whether by way of the ma jority “object ively reasona ble” ana lys is or by

use of the

nine facto rs p roposed in Justice Holder’s dissent.

When the case under submissionwas bef ore the Co

urt of App eals, Judg e Susano, writing in d issent, properl

y a nd thoughtfully

noted tha t “there is not one i ota of pr

oof” tha t Boga n retired in order to avo id hi s ob li gat io n t o pa y ali mo ny to hi s fo rme r sp ous e. In the absence of such proof, our inquiry should be l

imited to B ogan’ s ability

to pay . The Supe

rior Cour t of Pennsy

lvania reached a similar conclusion in Commonwealth ex rel. Burns v. Burns , 331 A.2d 768 (Pa. Super . Ct. 1974). Th ere, the cour

t held tha t voluntar y r etireme nt would be

a ground for reduction of ali mony if no t done for the sole purpose of reducing the f unds available for alimony payments. See id. at 770. The court stated, “If the e

vidence demonstrates that [the obligor] retired solely to extinguish orreduce his earning for the purpose of avoiding support payments . . . , the lower court wou l d then be justified in setting a support order based on his pre-retire ment income.” Id. 3 I wou ld app ly th is reasoning in Tennessee case s involving obligors over age 62.

Becau se I believe that the retire ment of workers nearing the ends of their c areers should be presumed reason able in the absenc e of proo f by the oblig ee that th

e sole purpose of the retirement
was to avoid the payment of a limony, I amconstrained

to di ss en t. Be yon d t he go od fa it h i nq ui ry, we have neither the right nor the standard by which to gauge whe

ther the retirement of workers nearing the ends of their careers is “objectively reas onable.” A standard of presumptive-3-

reasona blenesswo ul d a vo id th is qu an da ry. Ad di ti on al ly, it would free trial judges from the complex andunpleasa

nt task of telling a person th at his or her br

ightest hope for the futur e, retir ement, isnot objectively reasonable.

___________________________________ ADOLPHO

A. BIRCH, J

R., JUSTICE