Ward v. Ward

• Decision Date: 27 January 1987
• Docket Number: No. 86-1619,86-1619
• Citation: 502 So.2d 477,12 Fla. L. Weekly 374
• Parties: 12 Fla. L. Weekly 374 Kathryn Elliot WARD, Appellant, v. Espy E. WARD, Appellee.
• Court: Florida District Court of Appeals

Page 477

502 So.2d 477

12 Fla. L. Weekly 374

Kathryn Elliot WARD, Appellant, v. Espy E. WARD, Appellee.

No. 86-1619.

District Court of Appeal of Florida,

Third District.

Jan. 27, 1987.

Rehearing Denied March 10, 1987.

Harold M. Braxton and Patricia Ann Ash, Miami, for appellant.

Joseph R. Colletti, Miami, for appellee.

Before SCHWARTZ, C.J., and DANIEL S. PEARSON and JORGENSON, JJ.

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 long-standing 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...