Wiedman v. Wiedman
| Decision Date | 18 December 1992 |
| Docket Number | No. 91-2122,91-2122 |
| Citation | 610 So.2d 681 |
| Parties | 18 Fla. L. Week. D16 Donald R. WIEDMAN, Appellant, v. Joyce M. WIEDMAN, Appellee. |
| Court | Florida District Court of Appeals |
Nichole Caruso Seropian, of Law Office of Joe Teague Caruso, P.A., Merritt Island, for appellant.
James R. Dressler, Cocoa Beach, for appellee.
Donald Wiedman appeals the trial court's order which denied his petition to reduce or terminate the periodic alimony payments that he must pay to Joyce Wiedman, his former wife. Wiedman based his claim for relief upon the fact that he was forced to retire because of poor health. We affirm.
A party seeking modification of permanent periodic alimony must show a substantial change of circumstances. Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980); Chastain v. Chastain, 73 So.2d 66, 68 (Fla.1954); Sec. 61.14(1), Fla.Stat. (1991). Appellant had initially agreed to the alimony which the trial court set and, therefore, as the party seeking a change, he carries "a heavier than usual burden of proof." Pimm v. Pimm, 601 So.2d 534, 537 (Fla.1992) quoting Tinsley v. Tinsley, 502 So.2d 997, 998 (Fla. 2d DCA 1987).
The trial court ruled that appellant failed to sustain his burden of proving entitlement to modification because, although his retirement was involuntary, appellant failed to present any evidence that he is unable to obtain alternative employment suitable to his health or that his employment income potential is any less now than it was at the time of the final judgment. We agree with the trial court that appellant did not meet this burden of proof.
However, unlike the concurring opinion, we conclude that the ruling in Pimm v. Pimm, supra, which considered the issue of whether "voluntary retirement" is a reasonable basis for modifying alimony, is not applicable to this case because here, appellant was subject to an "involuntary retirement". In Pimm v. Pimm, the Florida Supreme Court specifically stated:
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; under the Social Security Act the definition of "retirement age" includes "65 years of age"; and the Employee Retirement Income Security Act of 1974 defines "normal retirement age" as including the "time a plan participant attains age 65." 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.
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Voluntary retirement cannot be considered a change of circumstance which would warrant a modification of child support. (footnotes omitted, emphasis added.)
Pimm, 601 So.2d at 537. Obviously, an involuntary retirement may not always be considered the equivalent of a voluntary retirement because different factors and considerations may result in an involuntary retirement, and the effect of such factors and considerations upon the ability to pay alimony may have to be weighed differently.
W. SHARP, J., concurs specially, with opinion.
Donald Wiedman appeals from a denial of his petition for modification of his dissolution judgment by reducing or terminating the periodic permanent alimony payments he is obligated to pay to Joyce Wiedman, his former wife. He argues that the trial court's finding that his early retirement was "involuntary" because it was induced by medical and health considerations mandates that his alimony obligation be reduced. I disagree. I would resolve this case by applying the Florida Supreme Court's most recent decision on this issue, Pimm v. Pimm, 601 So.2d 534 (Fla.1992), which was not available at the time this cause was tried.
The record in this case shows that the parties had been married for twenty-eight years. They divorced in 1985, and Joyce was originally awarded $1,235.00 per month periodic permanent alimony. On October 9, 1990, the parties stipulated and agreed that the alimony would be reduced to $1,200 per month, in exchange for dropping a provision in the prior decree that Joyce would seek employment and Donald would get a fifty percent net reduction if she earned above a certain level.
During the marriage, Joyce was exclusively a housewife and homemaker. After the dissolution, she has worked at minimum wage jobs, without any benefits. Currently, her gross wage is $375.00 per month. She has limited cash assets and resources, and no prospects of improving her financial situation. Donald admits she is totally financially dependent upon him.
Both at the time of the dissolution and the later stipulation, Donald suffered from heart problems and cardiovascular disease. In 1977 and in 1988, he had bypass surgeries. For a number of years prior to his retirement, he held a highly stressful job as a safety supervisor for Pan Am World Services at the Kennedy Space Center. He supervised safety procedures for shuttle, Atlas and Star Bird launches, and oversaw the handling of explosive propellants and high-pressure gases. His salary and pension from the Air Force totalled $3,600 per month (net).
In 1990, shortly after stipulating to the alimony reduction, Donald testified he felt his job was becoming increasingly stressful. He experienced pain in his chest. He was checked out by his cardiologists in Orlando. They found nothing objectively amiss with his heart or the bypass vessels.
His internist, Dr. Garel, who also worked with his cardiovascular surgeons, advised him in January of 1991, to retire from his job at the Space Center. Garel testified that Donald's current problems appeared to be mainly "subjective," but they were related to the mental stress of his job. He said he thinks there is a relationship between stress and coronary artery disease. Stress can make it worse.
In February of 1991, Donald retired from his job at the Cape. He was sixty-one years old. Almost immediately, he petitioned to reduce his alimony obligation owed to Joyce.
Following a hearing on Donald's petition, the court found that after retirement, Donald's income dropped from $3,736 (gross) per month, to $2,108. Donald admitted he had not sought any other less stressful jobs at the Cape or elsewhere, nor had he sought any disability payments from Social Security. He also testified he theoretically could work at a different job, if it did not entail too much stress.
Shortly after retiring, Donald and his girlfriend motored across the country to tour the West. She also had just retired from a job at the Cape in February of 1991. Donald testified he had not yet had to draw on his 401K Plan to meet living expenses although he could do so. He said he was living on his savings account, although he admitted it had increased rather than decreased in value since retirement. The court said it wanted to know whether there were other options open to Donald other than his high stress job and doing nothing. Donald made no showing he was physically unable to hold another less stressful job, or what amount of remuneration he was capable of earning in such a position.
Based on this record, the trial court found:
(c) Mr. Wiedman's retirement is determined to be 'early retirement', since he was 61 years of age and could have worked a number of years more, together with the fact that his employer was satisfied with Mr. Wiedman's job performance. The early retirement was precipitated by Mr. Wiedman's ongoing heart problems aggravated by stress, so as to prompt Mr. Wiedman's doctor to recommend retirement for the sake of Mr. Wiedman's health.
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(e) Mr. Wiedman's retirement, although 'early retirement', was involuntary; however, the Court finds that Mr. Wiedman has totally failed to show that he is not able to be employed in alternative employment areas not involving detrimental stress.
(f) Mr. Wiedman having failed to present evidence that he is unable to obtain alternative employment suitable to his health; and Mr. Wiedman having further failed to show that his employment income potential is any less now than it was at the time of the final judgment, the court determines that his petition should be denied. Ensley v. Ensley, 578 So.2d 497 (Fla. 5th DCA 1991).
Ensley dealt with whether income should be imputed to a parent in setting child support in a dissolution case pursuant to section 61.30(2)(b). We upheld the trial court's refusal to impute income to the father at the level of his $60,000 per year job in that case because he produced evidence that he diligently sought employment at his prior level, and was only able to find a position paying $23,920 per year, which was commensurate with his occupational qualifications and earnings available to him. In that case, we said the trial court could not impute income to a parent unless it found: 1) termination of the prior higher paid job was voluntary, and 2) employment at the lesser rate was due to a less than diligent or bona fide effort to obtain a job at the prior level.
Donald argues that the trial judge's conclusion in this case that his retirement from the Kennedy Space Center job was "involuntary", automatically removes him from the ambit of Ensley, which, if the second portion of the test were met, would permit the court to...
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