                         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



         1
            Bogan retired three weeks before his sixtieth birthday; therefore, I agree that his decision to retire should be
subject to the m ajority analy sis. I con cur se parately, ho wever, b ecau se the reach of the ma jority hold ing w ill mak e it
difficult, if not impossible, for this Co urt to later revisit this issue to avoid unduly bu rdening older w orkers.
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


         2
           If the age for Social Security eligibility were to be changed in the future, I would of course m odify m y analysis
to take that n ew age in to acc oun t.

         3
           Other courts have followed a com parable an alysis. See In re Sinks, 204 Cal. App. 3d 586, 588 (Cal. Ct. App.
1983) (“We co nclude that the trial court found [the obligo r’s] retireme nt was m otivated by his desire to avoid paying
spousal support, and, therefore, the refusal to term inate su ppo rt was not an abuse o f discre tion.”); Misinonile v.
Misinon ile, 645 A.2d 1024, 1027 (Con n. 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 subs tantial change of circumstances, was neither unreasonable nor
constituted an abuse of discretion.”).

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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




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