MAURICE C. PIMM, PETITIONER/CROSS-RESPONDENT,
v.
CAROLYN M. PIMM, RESPONDENT/CROSS-PETITIONER

Fla. | 1992-05-28
No. 76885
SHAW, C.J. and OVERTON, MCDONALD, BARKETT, GRIMES and KOGAN, JJ., concur.
601 So. 2d 534 Florida Supreme Court (1992) Caution
Cited by 194 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The Florida Supreme Court holds that a spouse's voluntary retirement at or after age 65 may be considered as a change in circumstances supporting modification of alimony obligations, rejecting a bright-line rule that completely prohibited consideration of voluntary retirement. The Court establishes a framework for evaluating reasonable retirement claims while protecting receiving spouses from poverty.


Holding

Yes. The Court holds that voluntary retirement may be considered as part of the total circumstances in determining if sufficient changed circumstances exist to warrant alimony modification, but the Court rejects a bright-line rule prohibiting such consideration. A retirement is presumptively reasonable at age 65 or later; retirement before 65 carries a heavy burden of proof. Courts must consider the payor's age, health, motivation, industry norms, and the receiving spouse's needs and accumulated assets.


Headnotes

[1] Postjudgment retirement of a spouse obligated to make support or alimony payments is a change of circumstance that may be considered, together with other relevant factors…

[2] A court considering modification of alimony based on retirement must examine the payor's age, health, motivation for retirement, the nature of the work, and the customary…

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Key Quotes

“unless there is such a "true" or "pure" property settlement agreement that forecloses modification or a showing that a spouse's future retirement was contemplated and considered in establishing the alimony payments, a supporting or payor spouse's retirement is a factor that may be considered along with all other relevant factors and applicable law in determining whether the payor spouse is entitled to a modification of alimony or support payments.”

States the core holding that voluntary retirement is a permissible consideration in alimony modification cases absent a pure property settlement agreement.

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Facts & Procedural History

Maurice Pimm and Carolyn Pimm divorced in 1975 after a 29-year marriage; the judgment required Maurice to pay Carolyn weekly alimony that would cease …

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Opinion of the Court
HARDING, Justice.

HARDING, Justice.

We review Pimm v. Pimm, 568 So. 2d 1299 (Fla. 2d DCA 1990), in which the district court of appeal certified the following question as a matter of great public importance:

IS THE POSTJUDGMENT RETIREMENT OF A SPOUSE WHO IS OBLIGATED TO MAKE SUPPORT OR ALIMONY PAYMENTS PURSUANT TO A JUDGMENT OF DISSOLUTION OF MARRIAGE A CHANGE OF CIRCUMSTANCE THAT MAY BE CONSIDERED TOGETHER WITH OTHER RELEVANT FACTORS AND APPLICABLE LAW UPON A PETITION TO MODIFY SUCH ALIMONY OR SUPPORT PAYMENTS?

Id. at 1301. We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution, and answer the question in the affirmative.

On July 21, 1975, a final judgment dissolved the twenty-nine-year marriage of petitioner Maurice C. Pimm (husband) and respondent Carolyn M. Pimm (wife). The final judgment incorporated a property settlement agreement of the parties providing that the husband would pay the wife weekly alimony installments which would cease in the event of the wife’s remarriage.1 In 1988, shortly before the husband turned sixty-five years of age, he filed a petition for modification of the final judgment seeking to terminate 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 Appeal originally affirmed the trial court, but upon rehearing, reversed the trial court and certified the question to this Court.

At the time of the dissolution of marriage, the husband was a civil engineer and president of his own surveying company. The husband subsequently became a salaried employee of the firm that purchased his company, and it was from this position that the husband contemplated retirement when he filed his petition for modification of the alimony payments. The wife was a full-time mother and homemaker and was never employed outside the home, either during or after the marriage. However, the record reflects that through inheritance and the sale of jointly-owned property the wife had accumulated considerable liquid assets since the time of the dissolution.

The wife contends that the husband’s voluntary act of retirement should not be considered a change of circumstance which would support a modification of alimony. The wife points out that in petitioning to modify alimony, the moving party must show three fundamental prerequisites. First, there must be a substantial change in circumstances. Chastain v. Chastain, 73 So. 2d 66 (Fla.1954); § 61.-14(1), Fla.Stat. (Supp.1988). Second, the change was not contemplated at the time of final judgment of dissolution. Withers v. Withers, 390 So. 2d 453 (Fla. 2d DCA 1980), review denied, 399 So. 2d 1147 (Fla.1981). Third, the change is sufficient, material, involuntary, and permanent in nature. Servies v. Servies, 524 So. 2d 678 (Fla. 1st DCA 1988). As measured by this standard, the wife argues that the husband’s voluntary retirement may be a substantial change, but it is not involuntary; that his retirement was or should have been contemplated at the time of final judgment; and that such a voluntary retirement is not sufficiently permanent in nature.

The husband claims that section 61.14(1), Florida Statutes (Supp.1988),2 expresses a public policy favoring modification of support in accordance with changed circumstances of the parties. He also asserts that if the reduced income of a payor spouse who retires at “normal” retirement age is not a factor that may be considered in proving a change in circumstances, then the payor spouse is put in the untenable position of being unable to retire at any age. The husband insists that if this Court disapproves the opinion of the district court, then it will be setting separate standards for self-employed payor spouses and non-self-employed payor spouses, whose retirement is generally mandated at a specific age.

Consequently, the husband urges that voluntary retirement is a part of the “total circumstances” which the “court can and should take into consideration” when modification is requested. Scott v. Scott, 285 So. 2d 423, 425 (Fla. 2d DCA 1973). The husband reasons that if the trial court is permitted to consider the payor spouse’s retirement as part of the total circumstances, then the court can inquire into the motivation and facts surrounding the retirement.

The district court held

that unless there is such a “true” or “pure” property settlement agreement that forecloses modification or a showing that a spouse’s future retirement was contemplated and considered in establishing the alimony payments, a supporting or payor spouse’s retirement is a factor that may be considered along with all other relevant factors and applicable law in determining whether the payor spouse is entitled to a modification of alimony or support payments.

Pimm, 568 So. 2d at 1301. In reaching that conclusion, the court rejected the bright line rule announced in Ward and Servies, which would not permit “any consideration of ‘voluntary’ retirement as a change of circumstance sufficient to support a modification of alimony or support payments.” Pimm, 568 So. 2d at 1300. In this case, the district court concluded that the agreement at issue was not a “pure” property settlement agreement because the wife “did not surrender any valuable property rights in exchange for her right to receive periodic alimony payments.” Id. at 1301. Thus, modification was not precluded by the type of agreement at issue.

The wife argues that the agreement’s silence on the issue of retirement combined with its provision that alimony would terminate upon her remarriage indicates that the husband chose to pay her, regardless of retirement, until such time as she remarried. We do not agree with this argument. Although it would be a better practice to incorporate consideration of retirement and what will happen in the event of retirement in an agreement or final judgment, we find that silence in that regard should not preclude consideration of a reasonable retirement as part of the total circumstances in determining if sufficient changed circumstances exist to warrant a modification of alimony.

In determining whether a voluntary retirement is reasonable, the court must consider the payor’s age, health, and motivation for retirement, as well as the type of work the payor performs and the age at which others engaged in that line of work normally retire. The age of sixty-five years has become the traditional and presumptive age of retirement for American workers: many pension benefits maximize at the age of sixty-five; taxpayers receive an additional federal tax credit at the age of sixty-five in recognition of the reduced income which accompanies retirement;3 under the Social Security Act the definition of “retirement age” includes “65 years of age”;4 and the Employee Retirement Income Security Act of 1974 defines “normal retirement age” as including the “time a plan participant attains age 65.”5 Based upon this widespread acceptance of sixty-five as the normal retirement age, we find that one would have a significant burden to show that a voluntary retirement before the age of sixty-five is reasonable. Even at the age of sixty-five or later, a payor spouse should not be permitted to unilaterally choose voluntary retirement if this choice places the receiving spouse in peril of poverty. Thus, the court should consider the needs of the receiving spouse and the impact a termination or reduction of alimony would have on him or her. In assessing those needs, the court should consider any assets which the receiving spouse has accumulated or received since the final judgment as well as any income generated by those assets.

Additionally, the court should consider whether the provision for alimony was contained in an agreement between the parties or solely in a judgment of the court. “Where the alimony sought to be modified was ... set by the court upon an agreement of the parties, the party who seeks a change carries a heavier than usual burden of proof.” Tinsley v. Tinsley, 502 So. 2d 997, 998 (Fla. 2d DCA 1987).

Finally, we note that the obligation to pay support to a former spouse is different from the obligation to pay child support. Voluntary retirement cannot be considered a change of circumstance which would warrant a modification of child support.

Accordingly, we answer the certified question in the affirmative and approve the decision below. We note that because both Ward and Servies involved payor spouses younger than sixty-five years of age, the outcome of those cases could be the same under the rationale of this opinion. However, we disapprove Ward and Servies to the extent that they are inconsistent with this opinion.

It is so ordered.

SHAW, C.J. and OVERTON, MCDONALD, BARKETT, GRIMES and KOGAN, JJ., concur. . While the motion for rehearing was pending in this case, the wife remarried. Although the issue is technically moot, we decline to dismiss because of the importance of the question certified by the district court.

. Section 61.14(1), Florida Statutes (Supp.1988), provides in pertinent part:

(1) When the parties enter into an agreement for payments for, or instead of, support, maintenance, or alimony, whether in connection with a proceeding for dissolution or separate maintenance or with any voluntary property settlement, or when a party is required by court order to make any payments, and the circumstances or the financial ability of either party changes ..., either party may apply to the circuit court ... for an order decreasing or increasing the amount of support, maintenance, or alimony, and the court has jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties ..., decreasing, increasing, or confirming the amount of separate support, maintenance, or alimony provided for in the agreement or order. . I.R.C. § 22 (1988).

. 42 U.S.C. § 416(l)(1)(A) (1988).

. 29 U.S.C. § 1002(24)(B)(i) (Supp. I 1989).


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Citator

Cited By (101 total)

  • Cooper v. Gress, 854 So. 2d 262 (Fla. 1st DCA 2003)
    …nterests justify changing custody. Newsom, 759 So. 2d at 719; Gibbs v. Gibbs, 686 So. 2d 639 (Fla. 2d DCA 1996). Furthermore, the substantial change must be one that was not reasonably contemplated at the time of the original judgment. Pimm v. Pimm, 601 So. 2d 534, 536 (Fla.1992). Although the former wife’s supplemental petition for modification invoked the “magic words,” alleging a substantial change of circumstances since the final judgment, in fact the general allegations are insufficient as a matter of l…
  • Lou Jean Miller v. Miller, 625 So. 2d 1320 (Fla. 5th DCA 1993)
    …e parties should consider the advantages and disadvantages of lump sum alimony and permanent periodic alimony or some combination thereof. Petticrew v. Petticrew, 586 So. 2d 508 (Fla. 5th DCA 1991) (lump sum alimony is not modifiable); Pimm v. Pimm, 601 So. 2d 534 (Fla.1992) (permanent alimony can be subject to modification where obligor spouse over age 65 voluntarily retires); Hamlet v. Hamlet, 552 So. 2d 210, 211 (Fla. 5th DCA 1989) (Sharp, W., J., dissenting) (“[Ejquitable distribution encompasses more tha…
  • Woolf v. Woolf, 901 So. 2d 905 (Fla. 4th DCA 2005)
    …imony. First, there must be a substantial change in circumstances. Second, the change was not contemplated at the time of final judgment of dissolution. Third, the change is “sufficient, material, involuntary, and permanent in nature.” Pimm v. Pimm, 601 So. 2d 534, 536 (Fla.1992); Damiano v. Damiano, 855 So. 2d 708, 710 (Fla. 4th DCA 2003). Where the alimony is set by the parties’ agreement, the party who seeks a change carries a heavier burden. Pimm, 601 So. 2d at 537. The “permanency” of the former husband…

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