Pimm v. Pimm, 89-00021

• Decision Date: 12 October 1990
• Docket Number: No. 89-00021,89-00021
• Citation: 568 So.2d 1299
• Parties: 15 Fla. L. Weekly D2613 Maurice C. PIMM, Appellant, v. Carolyn M. PIMM, Appellee.
• Court: Florida District Court of Appeals

Page 1299

568 So.2d 1299

15 Fla. L. Weekly D2613

Maurice C. PIMM, Appellant, v. Carolyn M. PIMM, Appellee.

No. 89-00021.

District Court of Appeal of Florida Second District.

Oct. 12, 1990.

Susana D. Gonzalez and Richard A. Weis of Susana D. Gonzalez, P.A., and Mark A. Neumaier, Tampa, for appellant.

Nancy Hutcheson Harris of Maney, Damsker & Arledge, P.A., Tampa, for appellee.

CAMPBELL, Judge.

The central question in this matter is whether the trial court erred in denying the former husband's petition to modify the ex-wife's alimony based upon the ex-husband's voluntary retirement at age 65, an event which is claimed to have diminished his income. We find that the trial court did err and, accordingly, reverse and remand for further consideration by the trial court.

The trial judge construed Ward v. Ward, 502 So.2d 477 (Fla. 3d DCA 1987), as requiring him to rule as a matter of law that a spouse's act of voluntary retirement at any age, if not mandated by the spouse's employer or by other circumstances such as ill health, is not a change of circumstance that may be considered in determining whether an obligation of the retiring spouse to pay alimony or support should be modified. A trial court is obligated to follow decisions of other district courts of appeal in this state in the absence of conflicting authority if the appellate court in its own district has not decided the issue. Stanfill v. State, 384 So.2d 141 (Fla.1980); American Mutual Insurance Co. v. Decker, 518 So.2d 315 (Fla. 2d DCA 1987), affirmed, 530 So.2d 59 (Fla.1988); Chapman v. Pinellas County, 423 So.2d 578 (Fla. 2d DCA 1982). The trial judge was, therefore, acting properly in ruling in accord with what he perceived to be the requirements of Ward. See also Servies v. Servies, 524 So.2d 678 (Fla. 1st DCA 1988). But also see Landry v. Landry, 436 So.2d 353 (Fla. 1st DCA 1983).

We, however, now decide that the apparent bright line rule announced in Ward and Servies rejecting any consideration of "voluntary" retirement as a change of circumstance sufficient to support a modification of alimony or support payments is too severe. It is undoubtedly the use of the term "voluntary" retirement that leads to the rule announced in Ward and Servies. A payor spouse's voluntary diminution of income where an ability to earn more is demonstrated has often been disregarded when such a spouse seeks reduction of alimony or support payments based on the voluntary diminution of income. 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). We cannot conclude, however, that a "voluntary" retirement under normal circumstances or at a normal or expected retirement age should be equated with such a voluntary diminution of income.

The record discloses that the ex-husband is a professional engineer who operated a successful business in Florida for many years. At the time of his retirement, he was a salaried employee of the firm that had purchased his surveying company. He continues to possess an engineering license granted by the state of Florida. The parties were divorced in 1975, after a twenty-nine-year marriage. The final judgment incorporated a property settlement agreement providing the ex-wife with alimony which would continue until such time as she remarried or died. There is no indication that the parties or the court contemplated the possibility of appellant's retirement.

When the ex-husband's instant petition was filed, he was paying $845 a month to the ex-wife. Following his divorce from the ex-wife, the ex-husband married a woman living in Birmingham, Alabama. It appears that at the time of the hearing in this matter he had established residence in Alabama. It further appears that the exhusband does not intend to seek an Alabama license permitting him to practice his profession in that state.

While the trial judge may have been able to sustain his decision to deny appellant's petition for modification of alimony on other grounds, he clearly based his denial, relying on Ward, solely on the premise that appellant's voluntary retirement at age 65 barred, as a matter of law, modification of the alimony obligation. We decline to follow the bright line rule adopted by our colleagues in Ward and Servies for several reasons. If the parties had remained married, they more than likely, as other retired people often do, would have expected to live on reduced income when the supporting spouse reached retirement age. We are unwilling to hold, as a matter of...