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.
‘Shared responsibility’: Court wrongly held husband responsible for retirement planning
By Virginia Lawyers Weekly – 3/21/2024
The Court of Appeals of Virginia has reversed a trial court’s 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 court emphasized the husband’s voluntary retirement and the parties’ lack of assets.
But Judge Richard Y. AtLee Jr. found no evidence to support the trial court’s decision to place the burden of retirement planning solely on the husband.
“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,” he wrote. “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.”
Judges Mary Grace O’Brien and Mary B. Malveaux joined AtLee in reversing and remanding Baker v. Baker (VLW 024-7-084).
48-year marriage
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.
The husband justified retirement because his contract was complete and, at 70 years of age, he felt unable to continue physically performing the job.
Refusing to modify support and imputing his pre-retirement income, the trial court disregarded the husband’s justification for retirement and faulted him for inadequate planning. The husband appealed.
Voluntary retirement
When considering modifying a spousal support award, a “payor spouse’s attainment of full retirement age shall be considered a material change in circumstances” AtLee pointed out, citing Va. Code § 20-109(E).
In Stubblebine v. Stubblebine, the appellate court declined to set a formal rule, but found it “persuasive[] that a spousal support award should not operate to force persons who have reached usual retirement age to continue working.”
“While ‘[a] reduction in income resulting from a voluntary employment decision does not require a corresponding reduction in the payor spouse’s support obligations, even if the decision was reasonable and made in good faith,’ there is no ‘bright-line rule requiring a payor spouse to forgo retirement in order to maintain support obligations at a pre-retirement level,” AtLee said. “Each case depends on its particular facts.”
The judge said it was “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.”
Further, AtLee said the trial court “essentially disregarded” the undisputed evidence that the husband — who was several years past legal retirement age — retired in the face of a “mounting struggle” to carry out 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 judge wrote. “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.”
Justification
AtLee rebutted the trial court’s disregard of the husband’s opinion that he could no longer perform his job; there was no contradictory evidence and the trial court didn’t find the husband not to be credible.
The trial court’s emphasis on the husband’s need to provide additional evidence “essentially required husband to introduce medical records and expert testimony to justify his retirement,” the judge pointed out.
“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,” AtLee wrote. “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.”
And even if husband was in relatively good health for his age, the evidence showed that he “experienced significant changes in his position that were outside his control,” the judge said, citing the court’s 2021 opinion in Nielsen v. Nielsen.
The husbands’ retirement — voluntary or not — was significant only to the extent it bore upon the current level of his earning capacity.
The trial court’s 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’s earning capacity.
“To 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,” AtLee wrote. “That 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.”
Lack of assets
The trial court’s heavy weight on the parties’ 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.
“[Wife] 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 judge wrote.
The wording of the trial court’s opinion — “Mr. Baker did absolutely no planning for retirement …. Mr. Baker certainly was aware that at some point he would want to retire, yet he continued to spend all that he made.” — was telling, AtLee said.
“[E]ach of these statements apply with equal force to wife (down to her current budget being dependent on husband’s continued payment of support),” he said.
By solely blaming the husband for the parties’ shared circumstances, the trial court ignored its finding that neither party had thought about or planned for retirement at the time they negotiated.
“Even 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,” AtLee concluded. “Accordingly, 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.”
Not controversial
Longtime Richmond family law attorney Lawrence Diehl told Virginia Lawyers Weekly his purpose when co-writing the amendment to § 20-109 was to recognize that, at some point, people should be able to retire.
“It wasn’t a controversial change because we wanted to get over the rulings that a voluntary retirement didn’t meet the material change standard,” he said. “Even if you show a change, it doesn’t mean support is going to be reduced.”
Craig Sampson, one of Diehl’s 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.
“While 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,” he said.
If you are in need of experienced divorce lawyers who gets results, please contact us online or by calling 703-361-0776.
Divorce lawyers in Manassas serving Fairfax County, Prince William County, and all of Northern Virginia.
