A Carluzzo Rochkind & Smith note: Following is an article by Virginia Lawyers Weekly. We did not handle this case, but it brings up important marital points your divorce lawyer should be familiar with. For more than 30 years our divorce lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
Domestic Relations: Income incorrectly imputed to retired spouse
By Virginia Lawyers Weekly – 4/8/2024
Where the trial court imputed husband’s entire pre-retirement income to him on the basis that he had voluntarily retired and that “the parties had inadequate retirement savings to support their spending[,]” the court abused its discretion by denying husband’s motion to reduce or end his support obligation to wife after their divorce.
Fact-specific
“Husband argues that the trial court erred by imputing his pre-retirement income to him. We agree, though we emphasize that our ruling is specific to the particular facts present in this case. …
“While we are mindful of the deferential standard of review, we nevertheless find that the trial court abused its discretion by imputing husband’s entire pre-retirement income to him.
“We find that the trial court placed too much emphasis on certain factors, in particular the fact that husband’s retirement was voluntary, see Code § 20-109(F)(2), and the parties’ lack of assets to support them post-retirement, see Code § 20-109(F)(6).”
Voluntary retirement
“As to the first factor, the trial court’s emphasis on the voluntary nature of the retirement rested on its belief that husband could have requested a change in responsibilities or continued working in his role.
“To the first part, it is pure speculation on the trial court’s 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.
“As to the latter part, the trial court essentially disregarded the uncontroverted evidence that husband, being several years past legal retirement age, retired in the face of a mounting struggle to perform the physical demands of his construction job.
“One 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.
“The 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.
“The trial court emphasized that ‘[t]he only justification Mr. Baker offered, for leaving his employment, was that his job was physically demanding, and he felt he could no longer perform his assigned duties.’
“Yet, despite there being no contradictory evidence, the trial court disregarded this as merely ‘his opinion’; however, it did not find that husband was not credible.
“It emphasized that husband had not provided additional evidence to support his assertion that, at 70, he was starting to face mobility challenges, and in doing so essentially required husband to introduce medical records and expert testimony to justify his retirement.
“For 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.
“Despite noting that husband ‘has difficulty bending,’ the trial court nonetheless, by imputing to him his entire previous salary, required husband to maintain employment that required squatting, crouching, and climbing ladders.
“Even if husband, as the trial court found, was ‘in relatively good health’ for someone at age 70, the evidence reflected that ‘[h]usband experienced significant changes in his position that were outside his control,’ … due to the mobility challenges that generally accompany aging and their interference with job performance.
“‘[H]usband’s departure from his job … whether voluntary or not, is relevant only to the extent it bears upon husband’s current level of earning capacity.’ …
“The trial court even noted that husband ‘may not be able to replace all his income,’ before concluding that he ‘has the work experience to obtain employment and generate additional income,’ but that ‘[n]o evidence was presented on exactly what he might be able to earn.’
“This highlights that the evidence did not support imputing his full pre-retirement salary, and wife presented no other evidence about what husband’s earning capacity may be.”
Lack of assets
“As to the second factor, the trial court’s opinion also heavily weighted that the parties had inadequate retirement savings to support their spending.
“By imputing income solely to husband, however, it placed the responsibility for having adequate retirement savings entirely on him, overlooking that this circumstance was created by both parties over the course of their approximately 46-year marriage.
“Planning 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.
“While 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.
“She was not incapable or unprepared to contemplate and prepare for the fact that, at some point, husband’s income, and amount of support, might change or altogether cease.
“The wording of the opinion letter is telling: ‘Mr. Baker did absolutely no planning for retirement …. The parties separated in 2016 already in their sixties. Mr. Baker certainly was aware that at some point he would want to retire, yet he continued to spend all that he made.’
“Yet each of these statements apply with equal force to wife (down to her current budget being dependent on husband’s continued payment of support).
“Further, placing this responsibility and blame solely on husband for this shared circumstance, with no mention of wife, ignores the trial court’s own finding that neither party had thought about or planned for retirement at the time they negotiated, and the court awarded, spousal support only a few years prior.”
Reversed and remanded.
Baker v. Baker, Record No. 1476-22-1, March 12, 2024. CAV (unpublished opinion) (AtLee Jr.) From the Gloucester County Circuit Court (Shaw, final judgment; Ricketts III, retired, judgment being appealed). Breckenridge Ingles (Martin, Ingles & Hensley, Ltd., on briefs), for appellant. Charles E. Haden for appellee. VLW 024-7-084, 9 pp.
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