Commonwealth ex rel. Burns v. Burns

Dissenting Opinion by

Price, J.:

I respectfully dissent from the majority opinion. The sole issue in this appeal is whether a 61 year-old man may retire from employment, even though the effect of the retirement would be to reduce the amount of support he is able to pay his wife. Unlike the majority, I would reverse the lower court, base the new support order on the husband’s post-retirement income, and not remand the case for a hearing regarding the medical evidence of the husband as it relates to the reasons for retirement.

In the instant appeal, appellant-husband, 61 years old, retired after forty-five consecutive years of employment. Pursuant to a 1968 written separation agreement, appellant had been paying $160 per week for six years to the appellee-wife. Upon retirement, appellant stopped payments to appellee, who then filed a petition for support. The appellee contended that the appellant had retired in order to reduce his earnings and support payments, and to force the appellee into a divorce settlement. The lower court, after finding appellant’s *302reasons for quitting his job to be “insufficient and incredible,”1 entered an order for $123 per week based upon the appellant’s pre-retirement income. The lower court also refused the appellant’s request for an opportunity to call medical witnesses to support his testimony that ill health caused his retirement. Appellant appeals from the promulgation of this support order.

The majority finds that the lower court erred in not entertaining the medical evidence in order to ascertain whether the appellant retired because of medical reasons, and, therefore, would remand the case for a proper hearing. The results of this hearing would then be determinative of whether the appellant acted in bad faith in retiring and depriving appellee of the benefits of his employment compensation.

It is well settled that in determining what a husband reasonably should pay for the support of a wife, the court may consider the earning power of the husband and is not restricted to his actual earnings. See, e.g., Drummond v. Drummond, 414 Pa. 548, 200 A. 2d 887 (1964) ; Commonwealth ex rel. McNulty v. McNulty, 226 Pa. Superior Ct. 247, 311 A. 2d 701 (1973). This is especially true Avhere there is a question as to the husband’s good faith. Commonwealth ex rel. Sosigian v. Sosigian, 202 Pa. Superior Ct. 188, 195 A. 2d 883 (1963). And a husband cannot escape liability for support merely by withdrawing from every income-producing endeavor. See, e.g., Commonwealth v. Gleason, 166 Pa. Superior Ct. 506, 72 A. 2d 595 (1950) (almost immediately after the separation, the husband closed his grocery business and sold his entire stock of *303groceries) ; Commonwealth ex rel. Wieczorkowski v. Wieczorkowski, 155 Pa. Superior Ct. 517, 38 A. 2d 347 (1944) (husband, an employable pharmacist, after separation, continued to work in his mother’s drug store without receiving wages, although he obviously had an earning capacity far in excess of the “board and keep” which he was receiving). See also, Commonwealth ex rel. Ross v. Ross, 206 Pa. Superior Ct. 429, 213 A. 2d 135 (1965).

However, in my opinion, the case does not involve bad faith by the appellant by virtue of his retirement from his income-producing employment. Furthermore, the fact that appellant may have been suffering from medical ailments is not relevant to this determination. I am of the opinion that regardless of the appellant’s state of health, the appellant should not be deprived of an opportunity to retire even though the retirement would reduce the funds available for his wife’s support.

In this case, the appellant was employed by Gimbels for forty-five consecutive years. As a condition of his employment, appellant was enrolled in the employer’s retirement plan, whereby appellant qualified for retirement at the age of sixty. Thus, appellant, by fulfilling the age requirements and other necessary conditions of the retirement plan, was eligible for voluntary retirement at the age of sixty-one.

The relevant retirement plan authorizing voluntary retirement at sixty is but a reflection of a national trend in employer-employee relations. In today’s modern and technologically oriented world, ever replete with the strain of competition and stress, the standard normal retirement age of sixty-five is no longer viable.2 *304A growing number of retirement plans now permit voluntary early retirement before sixty-five, thus relegating the normal retirement age to a loss of much of its former meaning. This is especially true in the retail industry (i.e., Gimbels), where many employers are of the opinion “that retirement before sixty-five is desirable because of the competitive nature of the industry and the need for opening up opportunities for younger employees.”3 1 P-H Pension and Profit Sharing ¶2016 (1971).

Thus, I conclude, that where the husband is authorized by a retirement plan to retire at a reasonable age,4 such a retirement is not to be construed as an act of bad faith toward the wife or as a vindictive effort to withdraw from income-producing employment. And where the husband is properly authorized to retire, there is no need for the lower court to inquire into any *305of tlie husband’s collateral reasons for retiring, e.g., medical problems.

In my opinion, the appellant was not acting in bad faith by retiring, therefore, the lower court incorrectly looked to the appellant’s pre-retirement earnings in determining his present earning capacity. This is a proper instance where an “order should not be based on the husband’s earnings in the past, if it is unrealistic in light of his age or other circumstances.” Commonwealth ex rel. Ross v. Ross, 206 Pa. Superior Ct. 429, 432, 213 A. 2d 135, 137 (1965).5 See also Jones v. Jones, 348 Pa. 411, 35 A. 2d 270 (1944) ; Commonwealth ex rel. Barnes v. Barnes, 140 Pa. Superior Ct. 397, 14 A. 2d 164 (1940). The modified support order should not take into account appellant’s earning capacity prior to retirement, but should consider only actual income from retirement, proceeds from land rental, etc. Therefore, I would remand this case to the lower court for a modification of the support order consistent with this opinion.

Appellant testified that after informing his employer of his decision two years before actual retirement, he finally retired for two reasons: (1) loss of interest due to the death of a thirty-two year-old son of a brain tumor; (2) various medical problems. [NT 26]

The Pension Reform Act, Pub. L.N. 93-406, §3(24) (Sept. 2, 1974) defines “normal retirement age” as: “the earlier of—

(A) the time a plan participant attains normal retirement age under the plan, or

*304(B) the later of—

(i) the time a plan participant attains age 65, or

(ii) the 10th anniversary of the time a plan participant commenced participation in the plan.” [Emphasis added]

Statistics indicate that there is a trend toward permitting employees to receive early retirement pensions and the liberalization of early retirement requirements. See 1 P-H Pension and Profit Sharing ¶15,003.5 (1972).

In Commonwealth, ex rel. Ross v. Ross, 206 Pa. Superior Ct. 429, 213 A.2d 135 (1965), the appellant-husband, sixty-five years old, retired about seven months prior to the separation of the parties. The court, in modifying the support order based upon the appellant’s pre-retirement income, found no evidence that his retirement was unreasonable or that he had left his employment in bad faith to deprive his wife of support.

In the instant appeal, although the appellant retired at the age of sixty-one, under the circumstances this retirement age is not unreasonable. Thus, the reasonableness of the age of retirement depends upon the individual circumstances of the case and such factors as the provisions of the relevant retirement plan and the husband’s eligibility to retire thereunder.

The court in Boss noted that hardship might result from such a modification of a support order: “Retirement often reduces the income of the retired couple. Husbands and wives learn to adjust to their newly-limited means. In effect, they acquire a new station in life . . . [R]egardless of the husband’s prior earnings, the wife could not reasonably have expected that his income would remain constant after he retired.” 206 Pa. Superior Ct. at 433-34, 213 A.2d at 138.