KATHRYN ELLIOT WARD, APPELLANT,
v.
ESPY E. WARD, APPELLEE

Fla. 3d DCA | 1987-01-27
No. 86-1619
Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.
502 So. 2d 477 Florida District Court of Appeal, Third District (1987) Negative Treatment
Cited by 31 cases

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Holding

A voluntary retirement, not caused by circumstances beyond one's control, does not excuse a party from their alimony and health insurance obligations established in a final judgment of dissolution.


Headnotes

[1] A voluntary retirement, undertaken at the discretion of the payor spouse, does not, in itself, constitute a material change in circumstances justifying a modification of…

[2] The obligation to support a former spouse in a long-term marriage does not diminish in the later years of life, absent circumstances beyond the payor's control that lesse…

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Facts & Procedural History

Following a divorce judgment requiring permanent alimony and health insurance, the former husband voluntarily retired, significantly reducing his inco…

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Opinion of the Court
DANIEL PEARSON, Judge.

DANIEL PEARSON, Judge.

Eight years after the entry of a judgment dissolving the parties’ twenty-nine-year marriage, the former husband, having reached age sixty-three and remarried, decided to retire from his long-held job at a hospital. While the decision to retire was Mr. Ward’s to make, he necessarily knew that leaving his job in exchange for retirement would result in a substantial diminution of his income. Despite this, he left and, to accommodate his financial loss, immediately thereafter stopped paying the permanent periodic alimony of $100.00 per week that had been awarded to Kathryn, his former wife, as part of the 1977 final judgment and discontinued her health insurance coverage, an additional requirement of the final judgment. Kathryn moved to have Ward held in contempt and for a judgment of arrears; he moved to modify the alimony and health insurance provisions of the final judgment. From the trial court’s order refusing to hold Ward in contempt, reducing the permanent periodic alimony from $100.00 to $25.00 per week, and relieving Ward of his obligation to provide health insurance coverage,1 Kathryn appeals.

It is clear, and the trial court did not find otherwise, that Ward’s decision to retire was not mandated by his employer or by any circumstance — such as ill health — that could be said to have affected the voluntariness of the decision. Plainly and simply, he was, by his own admission, tired of working, would not work even if a job were available, and was desirous of spending his time hunting, fishing, and puttering in his yard.

While Ward was certainly entitled to retire from his more than forty years of steady employment, he was not entitled to have his former wife defray the cost of his retirement through a reduction of his longstanding obligations to her. At the time of Ward’s voluntary retirement and the hearing on the parties’ petitions more than a year later, Ward was — but for his precipitous decision to retire — fully capable of earning his pre-retirement income.

Thus, were Ward a younger man who had simply quit his job for a lower paying one, the income he was capable of earning would be imputed to him in determining the amount of support he should be required to give to his wife, Desilets v. Desilets, 377 So. 2d 761 (Fla. 2d DCA 1979); Fried v. Fried, 375 So. 2d 46 (Fla. 2d DCA 1979); Bradley v. Bradley, 347 So. 2d 789 (Fla. 3d DCA 1977); Mansfield v. Mansfield, 309 So. 2d 629 (Fla. 3d DCA 1975), even if the result were to be to require the husband to pay an amount of alimony entirely exhausting his actual income. Bradley v. Bradley, 347 So. 2d 789. The mere “use of the word ‘retirement’ to describe [the former husband’s] voluntary leaving of his job and subsequent reduction of his income does not automatically confer some preferred status upon his actions.” In re Marriage of Smith, 77 Ill.App.3d 858, 862, 33 Ill.Dec. 332, 336, 396 N.E. 2d 859, 863 (1979).

In our view, there is no reason why the decision to voluntarily retire should be on any different footing than is the decision to change life styles at some younger age.2 The obligation to support a former wife of a long-term marriage does not diminish in the later years of life. Only when the ability to carry out that obligation is lessened by circumstances beyond the control of the party required to pay support will such party be entitled to have the amount of the obligation reduced. Compare Ellis v. Ellis, 262 N.W. 2d 265, 268 (Iowa 1978) (“ ‘self-inflicted or voluntary’ ” retirement will not constitute a ground for reduction of future payments), Moseley v. Moseley, 216 So. 2d 852, 854 (La.Ct.App.1968) (“A father’s obligation to support his wife and child are [sic] paramount to his right to voluntary retirement.”) and Reed v. Reed, 260 Iowa 1166, 1168, 152 N.W. 2d 190, 191 (1967) (self-imposed termination of employment is not looked upon with favor when “detrimental to ... child’s best interests and at the resultant expense of a former spouse”) with Smith v. Smith, 419 A. 2d 1035 (Me. 1980) (former husband whose decrease in income was caused by retirement motivated by health problems and difficulties in relocating declining dental practice relieved from alimony obligation) and Toney v. To ney, 213 Iowa 398, 239 N,W. 21 (1931) (forced retirement may establish changed circumstances permitting modification).

Since no such circumstances exist in the present case, that portion of the final judgment of June 10, 1986, which reduces the husband’s alimony obligation to $25.00 per week and terminates his duty to provide health insurance for the former wife is reversed with directions to reinstate the corresponding provisions of the final judgment of dissolution and to enter judgment in favor of the former wife for arrears from August 9, 1985.

We find no error in the trial court’s refusal to hold Ward in contempt.

Reversed and remanded with directions.

. The trial court did enter a judgment for Kathryn for arrears in the amount of $2,414.27 to August 9, 1985, the date upon which Ward's motion to modify was at issue.

. Ward urges that Landry v. Landry, 436 So. 2d 353 (Fla. 1st DCA 1983), dictates a different result. In Landry, the First District affirmed a trial court order refusing to reduce a husband’s alimony payment despite his claim that his intervening retirement from the Navy had substantially changed his circumstances. Ward ar-ggles that implicit in this decision is that had a diminution in ability to pay been found, Landry would have obtained relief even though the diminution resulted from his retirement. The problem with Ward’s reliance on Landry is that it appears from the case that Landry's retirement was forced and involuntary ("He had not been informed of his imminent retirement.” Id. at 354.), making the case entirely inapposite to the present one.


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Citator

Cited By (16 total)

  • Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992)
    …ate the alimony obligation upon his retirement at the age of sixty-five. The wife counterpetitioned for an increase in alimony. The' trial court denied both petitions. As to the husband’s petition, the trial court determined that under Ward v. Ward, 502 So. 2d 477 (Fla. 3d DCA 1987), a voluntary retirement, regardless of age, is not a factor that can be considered in determining if there is a change of circumstance sufficient to modify the obligation to pay alimony. On appeal, the Second District Court of App…
  • DePOORTER v. Win Edward DePOORTER, 509 So. 2d 1141 (Fla. 1st DCA 1987)
    …ng spouse’s income, e.g., a reduction due to retirement, which was contemplated when the parties entered into the agreement. Penland v. Penland, 442 So. 2d 1054 (Fla. 1st DCA 1983); Landry v. Landry, 436 So. 2d 353 (Fla. 1st DCA 1983); Ward v. Ward, 502 So. 2d 477 (Fla. 3rd DCA 1987); Mastrilli v. Mastrilli, 478 So. 2d 377 (Fla. 2d DCA 1985), review dismissed, 484 So. 2d 9 (Fla.1986). When unmarried cohabitation is alleged as a factor warranting a finding of changed circumstance which will support modificati…
  • Carr v. Carr, 522 So. 2d 880 (Fla. 1st DCA 1988)
    …nt, at age 65, from the rigors of his medical practice. This he is entitled to do; but not at the expense of the wife’s right to adequate financial arrangements for her own living expenses, nor her right to equitable distribution. Cf., Ward v. Ward, 502 So. 2d 477 (Fla. 3rd DCA 1987). We find it somewhat ironic here that provision is made by the final judgment appealed to allow the husband to retire to a life of relative ease, comfort and financial security, while at the same time the wife (at age 57, or 59 a…

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