Marriage of Reynolds, Senior Citizens Facing Divorce Cannot Be Forced to Quit Retirement to
Fund Their Self-Support
The California Fourth Appellate District, Division Two, which includes
Riverside County, just issued a hugely important published decision which
deals with some of the retirement issues left open in
Marriage of Reynolds (1998) 63 Cal.App.4th 1373, another Riverside County appellate decision
that is of great interest to elders and family law professionals. The
Reynolds decision has been a core tenet relating to aging support payors and recipients,
in terms of their alimony rights and obligations. My former comrade Lee
Mohr was the successful attorney for the husband in that case, which reversed
a trial court imputation of income to a doctor who had reached retirement
age and so quit working. The resulting support award to the former spouse
would therefore have forced him to invade his separate property assets
in order to pay it.
Reynolds has been a gospel assumption ever since - that parties do reach a point
where they are entitled, as a matter of law, to quit working notwithstanding
their obligations to help support the other party, and so to modify or
terminate the prior support orders.
Beyond last year's
Marriage of Shimkus (2016) 244 Cal.App.4th 1260 (which approved
Reynolds while upholding a firefighter's right to retire at age 55 per California
state regulations), it has been almost two decades since an appellate
court has revisited the retirement and spousal support conundrum now facing
the baby boomer generation.
Marriage of McLain, Appellate Case No. E062884
Marriage of McLain, published on January 7, 2017.
McLain involves an appeal from a San Bernardino trial court ruling, which Justice
Douglas Miller, formerly an outstanding personal injury and civil litigator
out of Indio, affirms in rejecting the Husband's appeal. The trial
court judge, who did an excellent job, was Khymberli S.Y. Apaloo.
The parties married in late 2001. They separated in March, 2014, 13 years
later. They had no children together. In May, 2014, the husband was 68
years old and wife was 66. Husband worked as a firefighter. Wife had a
licensed real estate agent license, but had never used it; instead, she
had income as a personal assistant for another R/E broker.
Both parties retired in 2005, although the evidence was that Wife worked part-time for a number of
years later. Husband urged Wife to retire, so that they could travel together
and so enjoy their senior years (gosh, what a concept), and to spend time
with her grandchildren. Wife's primary focus after 2005 was as a homemaker
for them both. Neither had health issues. Wife had social security income
of $746/month, less $190/month for Medicare. Husband's retirement
income, mostly earned prior to marriage, amounted to $10,000/month. Nice.
Wish I was a public servant.
After the parties retired in 2005, Husband worked with a contractor to
build a home for them both in Big Bear. It was evidently completed in
2011. It was quite comfortable at 3,900 feet and was worth $775,000 when
completed. Wife owned another residence which was her separate property
(Fawnskin residence). She refinanced that property several times. Each
time, she pulled monies out of her separate property, which at least in
part was used to finance the Big Bear construction.
Husband had also owned separate property at date of marriage. Wife's
name had been added to the title, for refinancing purposes. Some of that
money also was used to construct the Big Bear home. Another source of
these improvements was the Husband's 401k, which appears to have been
his separate property at least in part. The total cost to build Big Bear
was about $508,000. The Big Bear home was free and clear.
Following the parties' separation, and keeping in mind that H was earning
$10,000/month as a former firefighter, at trial the court ordered H to
pay the wife $4,000/month as" judgment" spousal support. It
found that the Wife (W) needed spousal support in order to help place
her near the marital standard of living, as of the DOS. The trial court
refused to impute income to W, and no evidence was presented to justify
such an imputation. But more importantly, the court observed that W was
retired, and that under
Marriage of Reynolds, and its bright line cut-off rule, that income could be imputed to neither of them.
The trial court found that "The parties have a right to retire, and
they did that in fact do so." By the time the dissolution was filed,
the fact of that retirement and the income that they each had become part
of the marital standard of living. Otherwise, Judge Apaloo reasoned, the
W would be thrown out of retirement. Moreover, the trial court expressly
refused to give a
Gavron Warning to the Wife. It awarded her spousal support, and attorney fees.
H appealed, asserting that notwithstanding turning age 65 earlier, W had
an obligation to become self-supporting. He alleged she had no right to
retire, or to remain retired given the parties' dissolution. That
appeal was rejected.
When Dealing With Spouses at Retirement Age, Trial Courts Must Consider
the Effect of Subsections (h) and (n) of
Family Code Section 4320 - i.e., the
No appellate decision has previously, squarely, addressed "the age
factor" in issuing judgment spousal support orders based upon FC
section 4320, although many cases have circled around it.
Subsection (h) of the section 4320 requires trial courts to consider "the
age and health of the parties" and subsection (l) the relative circumstances
of the parties. Subsection (l) also gives trial courts discretion to address
"any other factors the court determines are just and equitable."
As Justice Douglas notes, a tension between those subparts of 4320 and
the goal of California that support spouses become self-supporting can
arise, given the relative ages of the parties. Justice Douglas views the
question as "can the family court determine that a supported spouse
being of retirement ago outweighs the 'self-supporting' factor"?
As I've been saying again and again for some years now, a movement
is afoot among all the appellate courts to enforce and interpret statutes
according to their "plain" meaning. Justice Douglas concludes
that when FC section says that the court is to consider "the age
and health of the parties" when ordering spousal support, that is
exactly what it must do with aging divorce disputants. "For the age
age factor to have meaning, the family court would need to consider whether
the parties are young and therefore presumably more likely to work and
earn a living wage, or whether the parties are older and perhaps no longer
working. In other words, the plain language of the statute reflects age
is a favor in determining spousal support. The point of considering age
when determining spousal support, in part, is that there comes an age
when people commonly stop working."
Hurrah! Another common sense decision that deals with the realities of
our real world experiences!
How Do the Countervailing Considerations of Section 4320 Get Weighted?
Justice Douglas then does something that is rare. The Court actually gives
some guidance for measuring the relative value of one 4320 factor, over another.
This case has some limitations within the grandma and grandpa divorce context
as it relates to couples who are already retired at date of separation,
as contrasted with those who separate in their elder years but before
reaching retirement age. What happens, for instance, with parties who
separate where the supported spouse is 53, or 57, or 62? Clearly in these
waning life years relative to the job market, opportunities diminish.
For those cases, you would do well to have a vocational or other expert
address the living standards, and employment opportunity statistics, for
people in those age groups. While many of us have heard that people's
most productive years begin at 45 maybe to 50, that is true only for those
who are already working in that queue.
McLain trial court declined to impute income to Wife because (a) there was no
evidence she had an income; (b) there was no evidence of jobs available
to her; (c) she was retired; and (d) she had a right to remain retired.
"The court's decision of Wife being retired reflects the court
taking into account 'the station in life that the parties had achieved,'
i.e., that they were both retired."
The trial court decision could not be considered an abuse of discretion,
and thus overturned, given that it's decision raised the inference
that it took into account the goal that the supported part be self-sufficient
within a reasonable period of time. "'Their retirement has been
part of the marital standard of living since well before the dissolution
of marriage was filed, and [Wife] is not now going to be thrown out of
retirement. For these same reasons, this Court is will also not be issuing a
As Justice Douglas remarks, "The court's reasoning reflects it
weighted the goal of the support party becoming self-supporting against
the marital standard of living, and reconciled that the goal of self-support
would conflict with the maintaining the marital standard of living because
the marital standard of living included being retired. The court's
reasoning shows it considered the relevant factors."
What About the Goal That the Supported Spouse Becomes Self-Supporting,
From the Point of a Gavron Warning On?
It is more common that parties separate in their 50's than in their
60's, in my experience. What happens with lengthy marriages when parties
separate in their 50's? Imagine a homemaker who learns their marriage
is over at age 54. How much time does she or he have left to create or
resurrect a life-style, before they turn 65, that is equal to one-half
of the parties' date of separation earnings (i.e., her half of the
their gross income funded lifestyle)? The length of the parties' marriage,
and the period where one party served as the home-maker, must be given
great deference in very long marriages especially as the number of years
left to them to recover are squeezed.
Possibly this, in some cases,
should be measured by how long it took the supporting spouse to earn the
level of income that they achieve by the date of separation?
For instance (and to be distinguished from the
McLain facts), take two parties who marry at age 24 and is a homemaker and mother
throughout the marital period. Thirty years later, the husband is earning
five times his earnings at date of marriage. Those earnings establish
the income part of the "marital standard of living" at separation,
for the two of them combined. Assume further that he has achieved $240,000/yearly
income by age 54. That is the equivalent of $120,000/year, or $10,000/month, for each.
Should the former wife be held to a standard where, now, in the 11 years
she has left that she is expected to reach a similar income level production,
or perhaps in two years from the point that she is given a
Gavron Warning assuming she is then age 63? After all, those income stream benefits
are not what likely happened for the husband, who probably hit his peak
income years in his 50's and leveled off, exactly at the time that
the wife becomes most vulnerable to the difficulties of launching a new
career, given the realities of ageism and employment for seniors, not
to mention a thoroughly different world and labor market three decades
later. That is the dystopic world we now live in.
Because, after all, that is exactly when many men think about swapping
a new (often younger) wife or partner for the old. It is also when men
tend to think about making a move to protect and assure their own retirement
incomes. Good time to trade horses, neh? The mare that is set out to pasture
though is to what, find a small spot in a corner to munch whatever hay
she gets - while the stallion prances through his remaining life eating
apples and carrots?
Author: Thurman W. Arnold