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ALIMONY TERMINATED IN LIGHT OF VOLUNTARY RETIREMENT DUE TO HEALTH CONCERNS

In the case of Odom v. Odom, (No. E2014-01049-COA-R3-CV, filed April 14, 2015), Husband appeals the Trial Court's judgment, which failed to terminate Wife's alimony payment due to Husband's retirement.

Facts

After 37 years of marriage, Husband and Wife divorced in 2007. The court split their assets mostly equally and granted Wife $10,000 per month in alimony. In August of 2012, Husband filed a petition to terminate alimony due to his pending retirement from his career as an Orthopedic Surgeon. An expert witness testified that if Husband's alimony payments continued, he would be out of money by, at the latest, his mid-eighties. Wife testified that she lived off of her alimony, but that she held about 3 million in liquid assets. She also admitted to spending large amounts of money on clothing, donations to the church, and gift-giving. The Trial Court denied husband's petition on the grounds that he retired before his health became an issue. Husband timely appeals this decision.

Review

On appeal, Husband argues that the court erred in not finding a material change in circumstances and failing to terminate or lower his alimony payments. Generally, retirement by choice is not considered acceptable grounds for a change in spousal support.  However, if the court finds the decision to retire to be objectively reasonable, retirement may constitute a material change in circumstances.

The Appellate Court summed up the current standard as follows:

"However, in Bogan, our Supreme Court held: that when an obligor's retirement is objectively reasonable, it does constitute a substantial and material change in circumstances -- irrespective of whether the retirement was foreseeable or voluntary -- so as to permit modification of the support obligation. However, while bona fide retirement after a lifetime spent in the labor force is somewhat of an entitlement, an obligor cannot merely utter the word "retirement" and expect an automatic finding of a substantial and material change in circumstances. Rather, the trial court should examine the totality of the circumstances surrounding the retirement to ensure that it is objectively reasonable. The burden of establishing that the retirement is objectively reasonable is on the party seeking modification of the award, cf. Seal v. Seal, 802 S.W.2d 617, 620 (Tenn. Ct. App. 1990), and the trial court's -7- determination of reasonableness will not be reversed on appeal absent an abuse of discretion, see, e.g., Crabtree, 16 S.W.3d at 360. * * * However, even when an obligor is able to establish that a retirement is objectively reasonable, and therefore that it constitutes a substantial and material change in circumstances, the obligor is not necessarily entitled to an automatic reduction or termination of his or her support obligations. As evidenced by its permissive language, the statute permitting modification of support awards contemplates that a trial court has no duty to reduce or terminate an award merely because it finds a substantial and material change in circumstances. See Tenn. Code Ann. § [36-5-121(a)2 ]. Instead, the change in conditions resulting from retirement merely allows the obligor to demonstrate that reduction or termination of the award is appropriate. Cf. McFadden, 563 A.2d at 184; Silvan, 632 A.2d at 530. Accordingly, when assessing the appropriate amount of modification, if any, in the obligor's support payments, the trial court should consider the factors contained in Tennessee Code Annotated section [36-5-121(i)]3 to the extent that they may be relevant to the inquiry. See, e.g., Watters, 22 S.W.3d at 821; Seal, 802 S.W.2d at 620; Threadgill v. Threadgill, 740 S.W.2d 419, 422-23 (Tenn. Ct. App. 1987)."

Upon review, the Court of Appeals finds ample evidence that Husband's retirement was due to his increasing health complications. Wife argues that Husband's health problems are not as severe as he claims and that he could find work outside of surgery. The Court of Appeals rejected Wife's claims. They found that Husband was 64 at the age of his retirement, and that his age combined with his health problems created reasonable conditions for his retirement. Accordingly, the Court of Appeals reversed the judgment of Trial Court and finds that there was, in fact, a material change in circumstances.

Next, the Court of Appeals must decide whether the change in circumstances warrants a change in Wife's alimony. As with all cases regarding alimony, the court must consider several factors including the mental capacity, financial state, earning capacity, and physical condition of each party. Considering the equal net worth of both parties, along with Husband's decreased income and Wife's assets which can more than provide for her needs, the Court of Appeals finds that Wife is no longer at an economic disadvantage when compared to Husband. The Court finds no reason for Husband to continue with alimony payments to Wife and terminates the alimony. The Court of Appeals reverses the Trial Court's judgment. The case is not remanded for further hearing.

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