Does retirement, on its own, justify a modification or termination of alimony?

By Nogah B. Helfant

In a recent unreported* decision Maryland’s intermediate appellate court considered a trial judge’s decision to deny a dentist’s request to terminate or reduce alimony, even though the dentist had retired.

Under MD Fam. Law Code § 11-107(b), the court may modify the amount of alimony awarded as circumstances and justice require. In addition, under MD Fam. Law Code § 11-108(3), alimony can be terminated if the court finds that termination is necessary to avoid a harsh and inequitable result.

In Miller v. Miller, the parties entered into a Memorandum of Understanding (“MOU”) on October 10, 2000, which was incorporated into the parties’ Judgment of Absolute Divorce. In the MOU, Dr. Miller agreed to pay Mrs. Miller alimony of $3,600 per month. Sixteen years after the MOU was signed, Dr. Miller decided to retire. Dr. Miller went to court to terminate or reduce alimony.

Evidence presented at trial showed that in his final year of employment, Dr. Miller, at age 72, earned over $188,000 and owned net assets of almost $2.9 million. Mrs. Miller, at age 68, was not employed at all, and was living off income from $1 million in assets she received under the MOU. During the marriage, Mrs. Miller had only worked sporadic part-time jobs, and earned at most just over $22,000.

Each party hired financial experts to testify about Dr. Miller’s ability to continue to pay $3,600 per month once he retires. Both experts considered Dr. Miller’s current age, life expectancy, average rate of return on his assets, and inflation. Mrs. Miller’s expert included all of Dr. Miller’s assets, including a substantial inheritance and the sale of his dental practice, while Dr. Miller’s expert only included the amount in Dr. Miller’s IRA. However, both experts agreed that Dr. Miller would not run out of money if he continued to pay Mrs. Miller $3,600 per month in alimony for the next five years.

In addition, Dr. Miller argued that Mrs. Miller had not made efforts to become self supporting. Mrs. Miller maintained she could not work due to her age, health, and difficulty finding minimum wage work at her age. Dr. Miller hired a vocational expert who testified that, based upon Mrs. Miller’s previous experience in child care, if Mrs. Miller worked part time as a child care provider and supplemented her position as a part time nanny or baby sitter, she could potentially earn $18,000-$19,000 per year.

In its analysis, the trial judge relied on the holding in Blaine v. Blaine, 336 Md. 49, 74 (1994), which states that an increase or decrease in the payor’s income is one of a totality of circumstances to be considered by the court when a request to modify alimony is made. The trial judge ruled that, while Dr. Miller’s retirement is a change of circumstance, it was not material to Dr. Miller’s ability to continue pay alimony at $3,600 per month. The trial judge also ruled that Dr. Miller’s total assets were more than sufficient to support him after he retires and, at the same time, allow him to continue to meet his alimony obligation.

As for Dr. Miller’s argument that the trial judge failed to consider Mrs. Miller’s lack of effort to become self supporting, the Court of Special Appeals held that there is no requirement that courts must consider the receiving spouse’s efforts to become self-sufficient when deciding to modify or terminate alimony.

The Court of Special Appeals affirmed the trial judge’s decision.

* An “unreported” opinion by Maryland’s intermediate appellate court is published on the Court’s website, but may not be cited in any paper, brief, motion, or other document filed in any Maryland court, as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104. However, unreported opinions do offer insight into issues addressed by that court.