Fuller opinion provides little guidance on affect of retirement on periodic alimony

Even though he was reversed, one has to admire the clarity of Judge R. Kinard Johnson, Jr.’s views on age, retirement and alimony.  Judge Johnson was asked to determine Husband’s request to reduce his alimony based on Husband’s claim that his medical condition limited his ability to work.  Husband was 67 years old at the time of trial.  At trial, Husband’s attorney asked to keep the record open so that he could depose Husband’s treating physician, as he alleged the physician had not been available for deposition prior to trial.  Judge Johnson indicated he didn’t need to hear from the physician because:

Well, I don’t make 67 year-old men go to work.  . . . if it’s a question about me telling a 67 year-old man–whether his knees are good or bad, doesn’t matter to me–that he’s got to go out and get a job now, I’m not going to wait for the doctor to tell me his knees are bad if that’s what it’s all about.

The trial proceeded with Judge Johnson refusing to consider any evidence regarding Husband’s earning capacity.  Based on the parties’ respective social security retirement incomes, he reduced Husband’s alimony obligation from $1,200 to $250 per month.  Wife appealed.

The Court of Appeals, in the January 25, 2012 opinion of Fuller v. Fuller, 397 S.C. 155, 723 S.E.2d 235 (Ct. App. 2012), reversed and remanded.  It noted the proper consideration for modifying permanent periodic alimony was set forth in the following portion of S.C. Code § 20-3-170:

Whenever any husband or wife, pursuant to a judgment of divorce from the bonds of matrimony, has been required to make his or her spouse any periodic payments of alimony and the circumstances of the parties or the financial ability of the spouse making the periodic payments shall have changed since the rendition of such judgment, either party may apply to the court which rendered the judgment for an order and judgment decreasing or increasing the amount of such alimony payments or terminating such payments and the court, after giving both parties an opportunity to be heard and to introduce evidence relevant to the issue, shall make such order and judgment as justice and equity shall require, with due regard to the changed circumstances and the financial ability of the supporting spouse, decreasing or increasing or confirming the amount of alimony provided for in such original judgment or terminating such payments.

In justifying the reversal, the Court of Appeals further noted that:

 [T]he family court expressly considered only Husband’s age, and failed to consider Husband’s financial ability or other circumstances of the parties.  Further, the family court judge failed to consider whether any change in circumstances was unanticipated, as is required to support alimony modification, or whether the amount of alimony in the original decree reflected the expectation of any change of circumstances.  Finally, the family court judge expressly acknowledged that he excluded the relevant evidence concerning Husband’s ability or inability to work, in contravention to the requirement of  § 20-3-170 that the court give “both parties an opportunity to be heard and to introduce evidence relevant to the issue.”

The Court of Appeals “decline[d] to adopt a bright-line rule that, where the supporting spouse reaches a particular age, that age alone is sufficient to justify a reduction or termination of alimony.  Rather, the court should consider all relevant evidence and determine whether there has been a substantial or material, unanticipated change in circumstances warranting a reduction in a supporting spouse’s alimony obligation.”

In concurrence Judge Lockemy would have provided guidance on the factors the court should look at in deciding whether and how much reaching retirement age should affect alimony.  His concurrence discussed case law from other states and engages in a frankly-poetical discussion of the pleasures of retirement.

Fuller demonstrates a continuing pattern of our appellate courts refusing to provide much guidance to the family court bench and bar on recurring legal issues (and the issue of how retirement should affect alimony is one of the more common alimony modification issues).  Common sense dictates that there shouldn’t be a bright-line test on when age should justify reducing or terminating alimony.  As the human brain typically decays at a much slower rate than the human body, jobs that rely upon brains typically have a later retirement age than jobs that rely upon the body.  Retirement ages for coal miners and lawyers should not be subject to the same bright-line test.  However, just because a bright-line test isn’t appropriate, doesn’t mean that some guidance beyond the mere citation to  § 20-3-170 wouldn’t be helpful.   That statute says nothing about retirement and alimony.  The appellate courts are issuing approximately one published opinion on alimony and retirement each decade.  As longevity increases, litigants, attorneys and family court judges need guidance on how retirement should affect alimony and whether reaching a certain age should allow one to stop working and have alimony reduced.  Too bad only one judge from the Fuller panel was willing to provide such guidance.

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