Pimm v. Pimm
| Citation | 601 So.2d 534 |
| Decision Date | 28 May 1992 |
| Docket Number | No. 76885,76885 |
| Parties | Maurice C. PIMM, Petitioner/Cross-Respondent, v. Carolyn M. PIMM, Respondent/Cross-Petitioner. 601 So.2d 534, 17 Fla. L. Week. S302 |
| Court | United States State Supreme Court of Florida |
Susana D. Gonzalez and Richard A. Weis of Susana D. Gonzalez, P.A., Tampa, for petitioner/cross-respondent.
Nancy Hutcheson Harris and A. Ann Arledge of Maney, Damsker & Arledge, P.A., Tampa, for respondent/cross-petitioner.
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); Sec. 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.
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