RICHMOND, Va. — The Court of Appeals of Virginia has reversed a trial court\u2019s refusal to modify the spousal support order of a 70-year-old man who voluntarily retired due to the physical demands of his job even though the parties had inadequately planned for retirement.
\nWhen imputing his pre-retirement income to calculate support, the trial court emphasized the husband\u2019s voluntary retirement and the parties\u2019 lack of assets.<\/p>\n
But Judge Richard Y. AtLee Jr. found no evidence to support the trial court\u2019s decision to place the burden of retirement planning solely on the husband.<\/p>\n
\u201cPlanning and providing for retirement is not the responsibility of one spouse, and, absent some evidence that supports doing so, a court should not place that burden solely on one party,\u201d he wrote. \u201cWhile husband had been the primary breadwinner both during and after the marriage, wife, a partner in the marriage, was also responsible for the decisions that the parties made during the marriage, including the decision to not adequately plan for retirement.\u201d<\/p>\n
Judges Mary Grace O\u2019Brien and Mary B. Malveaux joined AtLee in reversing and remanding Baker v. Baker<\/em>.<\/p>\n 48-year marriage<\/strong><\/p>\n Larry James Baker and Vicky Sue Baker were married in 1970 and the husband agreed to pay spousal support when they divorced in 2018. The husband moved to reduce the support amount after he voluntarily retired in 2022 from his career in energy management construction.<\/p>\n The husband justified retirement because his contract was complete and, at 70 years of age, he felt unable to continue physically performing the job.<\/p>\n Refusing to modify support and imputing his pre-retirement income, the trial court disregarded the husband\u2019s justification for retirement and faulted him for inadequate planning. The husband appealed.<\/p>\n Voluntary retirement<\/strong><\/p>\n When considering modifying a spousal support award, a \u201cpayor spouse\u2019s attainment of full retirement age shall be considered a material change in circumstances\u201d AtLee pointed out, citing Va. Code \u00a7 20-109(E).<\/p>\n In Stubblebine v. Stubblebine<\/em>, the appellate court declined to set a formal rule, but found it \u201cpersuasive[] that a spousal support award should not operate to force persons who have reached usual retirement age to continue working.\u201d<\/p>\n \u201cWhile \u2018[a] reduction in income resulting from a voluntary employment decision does not require a corresponding reduction in the payor spouse\u2019s support obligations, even if the decision was reasonable and made in good faith,\u2019 there is no \u2018bright-line rule requiring a payor spouse to forgo retirement in order to maintain support obligations at a pre-retirement level,\u201d AtLee said. \u201cEach case depends on its particular facts.\u201d<\/p>\n The judge said it was \u201cpure speculation on the trial court\u2019s part, without evidentiary support, that husband could have negotiated with his employer to perform some alternate role that did not require him to perform the physical aspects of his job, or that such a position would earn a comparable salary.\u201d<\/p>\n Further, AtLee said the trial court \u201cessentially disregarded\u201d the undisputed evidence that the husband \u2014 who was several years past legal retirement age \u2014 retired in the face of a \u201cmounting struggle\u201d to carry out the physical demands of his construction job.<\/p>\n \u201cOne could expect these struggles to become more significant, and more prone to end in injury or accident, if husband had started work on a new contract,\u201d the judge wrote. \u201cThe trial court also ignored that there was no evidence that husband, already retired, could resume working in that role, or that he could obtain other employment at the same salary.\u201d<\/p>\n Justification<\/strong><\/p>\n AtLee rebutted the trial court\u2019s disregard of the husband\u2019s opinion that he could no longer perform his job; there was no contradictory evidence and the trial court didn\u2019t find the husband not to be credible.<\/p>\n The trial court\u2019s emphasis on the husband\u2019s need to provide additional evidence \u201cessentially required husband to introduce medical records and expert testimony to justify his retirement,\u201d the judge pointed out.<\/p>\n \u201cFor an uncontested issue, the time and expense of providing such corroboration should not be a prerequisite to prove the common-sense notion that a 70 year old is experiencing physical limitations in his physically demanding construction job,\u201d AtLee wrote. \u201cDespite noting that husband \u2018has difficulty bending,\u2019 the trial court nonetheless, by imputing to him his entire previous salary, required husband to maintain employment that required squatting, crouching, and climbing ladders.\u201d<\/p>\n And even if husband was in relatively good health for his age, the evidence showed that he \u201cexperienced significant changes in his position that were outside his control,\u201d the judge said, citing the court\u2019s 2021 opinion in Nielsen v. Nielsen<\/em>.<\/p>\n The husbands\u2019 retirement \u2014 voluntary or not \u2014 was significant only to the extent it bore upon the current level of his earning capacity.<\/p>\n The trial court\u2019s acknowledgment that the husband may not be able to replace his income before concluding that he could obtain additional income highlighted that no evidence supported imputing his full pre-retirement salary or established the husband\u2019s earning capacity.<\/p>\n \u201cTo impute to husband the entire salary of a job he was increasingly unable to perform ignores that the evidence reflected that his earning capacity had, and was continuing to, change,\u201d AtLee wrote. \u201cThat is not to say that the trial court could not have imputed some income to husband. Only that the evidence in this case did not support imputing to him the entire income of a job that he could not continue to perform.\u201d<\/p>\n Lack of assets<\/strong><\/p>\n The trial court\u2019s heavy weight on the parties\u2019 inadequate retirement saving to impute income solely to the husband placed the responsibility to save for retirement entirely on him and overlooked the circumstances created by the parties during their marriage, AtLee noted.<\/p>\n \u201c[Wife] was not incapable or unprepared to contemplate and prepare for the fact that, at some point, husband\u2019s income, and amount of support, might change or altogether cease,\u201d the judge wrote.<\/p>\n The wording of the trial court\u2019s opinion \u2014 \u201cMr. Baker did absolutely no planning for retirement \u2026. Mr. Baker certainly was aware that at some point he would want to retire, yet he continued to spend all that he made.\u201d \u2014 was telling, AtLee said.<\/p>\n \u201c[E]ach of these statements apply with equal force to wife (down to her current budget being dependent on husband\u2019s continued payment of support),\u201d he said.<\/p>\n By solely blaming the husband for the parties\u2019 shared circumstances, the trial court ignored its finding that neither party had thought about or planned for retirement at the time they negotiated.<\/p>\n \u201cEven if one spouse earns the majority of the marital income, it does not follow that the responsibility for retirement planning necessarily falls solely upon that spouse,\u201d AtLee concluded. \u201cAccordingly, because retirement planning is a shared marital responsibility, absent some reason that one party is unable to participate in that planning, the trial court, by holding husband solely responsible, reached a conclusion that lacked justification and evidentiary support.\u201d<\/p>\n Not controversial<\/strong><\/p>\n Longtime Richmond family law attorney Lawrence Diehl said in an interview that his purpose when co-writing the amendment to \u00a7 20-109 was to recognize that, at some point, people should be able to retire.<\/p>\n \u201cIt wasn\u2019t a controversial change because we wanted to get over the rulings that a voluntary retirement didn\u2019t meet the material change standard,\u201d he said. \u201cEven if you show a change, it doesn\u2019t mean support is going to be reduced.\u201d<\/p>\n Craig Sampson, one of Diehl\u2019s law partners, found it unusual for the appeals court to overrule a decision where the trial court applied the correct burden of proof and legal standards.<\/p>\n \u201cWhile the case is unpublished and the court was careful to state that its opinion was specific to the facts of that case, the message seems clear that the judges believe there is a point when a person should be allowed to retire,\u201d he said.<\/p>\n Nick Hurston is a reporter for Virginia Lawyers Weekly.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" RICHMOND, Va. — The Court of Appeals of Virginia has reversed a trial court\u2019s refusal to modify the spousal support order of a 70-year-old man who voluntarily retired due to the physical demands of his job even though the parties had inadequately planned for retirement. When imputing his pre-retirement income to calculate support, the trial …<\/p>\n","protected":false},"author":4199,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[52569,2536,71496],"tags":[],"class_list":["post-17687","post","type-post","status-publish","format-standard","hentry","category-articles","category-featured","category-cover-stories","subscriber_only"],"acf":[],"yoast_head":"\n