               IN THE COURT OF APPEALS OF TENNESSEE

                           AT KNOXVILLE                  FILED
                                                       November 2, 1999

                                                       Cecil Crowson, Jr.
                                                      Appellate Court Clerk



RICHARD THOMAS BOGAN,         )   C/A NO. 03A01-9811-CH-00393
                              )
          Plaintiff-Appellee, )
                              )
                              )
                              )
v.                            )   APPEAL AS OF RIGHT FROM THE
                              )   SULLIVAN COUNTY CHANCERY COURT
                              )
                              )
                              )
                              )
DORIS MAE BOGAN,              )
                              )   HONORABLE JOHN S. McLELLAN, III,
          Defendant-Appellant.)   CHANCELLOR




                   DISSENTING OPINION

           I dissent from the judgment of the majority opinion

“reinstat[ing] the prior award of $2,300 monthly alimony as

provided in the parties’ original divorce decree.”     In my

opinion, the trial court did not abuse its discretion when it

reduced Mr. Bogan’s monthly alimony obligation from $2,300 to

$945.   I would affirm the judgment of the trial court.

           There is absolutely nothing about the parties’ property

settlement agreement that even remotely suggests that the

parties, in setting periodic alimony in futuro at $2,300 per

month, intended that their agreement would, under all

circumstances, survive, without modification, Mr. Bogan’s

voluntary retirement.   It seems clear to me that these parties,

in their early 50s at the time of their divorce, intended to set



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alimony based upon the parties’ needs and resources as they

existed at the time of the divorce.     Furthermore, there is not

one iota of proof that Mr. Bogan was motivated to retire out of a

desire to avoid paying his former spouse the full amount of

alimony set forth in the divorce judgment.     On the contrary, the

evidence is clear that he retired at a reasonable age and for

justifiable reasons, totally unrelated to any malice toward his

former wife.

          At the time of the parties’ divorce, an award of $2,300

per month in periodic alimony was reasonable based upon the

circumstances then and there existing.     Clearly, such an award is

not reasonable now based upon Mr. Bogan’s present circumstances

in retirement.   If he is not entitled to retire at age 62 with

some reduction in alimony, when is he entitled to some relief?

At age 65?   When he is 70 years old?    How long must he work?

Must he continue to work, even if his continued employment

adversely affects his retirement benefits?     Is he not entitled to

retirement after a lifetime of faithful employment service?

          The majority makes a fundamental mistake when it finds

that, at the time of divorce, the parties contemplated Mr.

Bogan’s retirement, and that they factored this, in some

unspecified way, into their decision to establish alimony at

$2,300 per month.   In addition, I believe it is clear that the

majority is way off base when it states that “the parties

contemplated [Mr. Bogan’s retirement] since they divided

retirement benefits as part of their property settlement.”     The

parties divided their retirement benefits simply because those

benefits were marital assets, and all marital assets are to be

divided in a divorce.   See T.C.A. § 36-4-121(a)(1).    It is a


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gross fiction to find that the parties sub silentio contemplated

retirement simply by doing something that they were required to

do as a matter of law, i.e., divide their marital property in an

equitable fashion.

           I acknowledge that Mr. Bogan’s retirement was

voluntary.    As a matter of fact, many, if not most retirements,

are voluntary; but the voluntary nature of retirement, as long as

it is undertaken at a reasonable age, for reasonable reasons, and

not pursued for the purpose of avoiding alimony, should not, in

and of itself, prevent a retirement from constituting a

“substantial and material change of circumstances” under T.C.A. §

36-5-101(a)(1).

           The Sannella case relied upon by the majority is very

different from the instant case.       In Sannella, this Court,

speaking through a panel of the Middle Section, concluded “that

Dr. Sannella [had] failed to prove that the change of

circumstances [was] material enough to justify terminating his

spousal support obligation.”     Sannella v. Sannella, C/A No.

01A01-9701-CV-00004, 1999 WL 33005, at *4 (Tenn.Ct.App. M.S.,

filed January 27, 1999) (permission to appeal denied June 7,

1999) (Emphasis added).     In other words, even though Dr. Sanella

had retired, he could still afford the previously-ordered

alimony.     That is not the case in the instant case.   Husband here

can no longer afford to pay an alimony obligation that was based

on his earlier gross salary of $6,908 per month.

             I believe that when a divorce judgment does not

expressly or by clear implication address what is to occur with

respect to an alimony obligation when the obligor spouse retires,

that the rule should be that retirement, even though voluntary,


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can form the basis for a finding of a substantial and material

change of circumstances so as to prompt a new evaluation of the

alimony obligation if such retirement was at a reasonable age;

based upon objectively reasonable grounds; and undertaken for

reasons other than a desire to deprive a former spouse of

alimony.   Such a reevaluation would not necessarily result in a

modification.   As in Sannella, the facts after retirement may

well justify the maintenance of the original award.   But I reject

the adoption of a fiction, i.e., that the parties had

contemplated retirement when clearly, as in the instant case,

they had not.

           If asked to do so, I believe the Supreme Court should

grant permission to appeal in this case to consider the effect of

a voluntary retirement on an existing alimony obligation.



                                     __________________________
                                     Charles D. Susano, Jr., J.




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