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Dogoda v. Dogoda

Florida Court of Appeals, Second District

December 6, 2017

ANTHONY E. DOGODA, JR., Appellant,
v.
AMY DOGODA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal from the Circuit Court for Sarasota County; Frederick P. Mercurio, Judge.

          Peter J. Mackey and B. Kyle Stalnaker of Mackey Law Group, P.A., Bradenton, for Appellant.

          Kenneth M. Poole, Jr. of Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A., Sarasota, for Appellee.

          LaROSE, Chief Judge.

         Anthony E. Dogoda, Jr. appeals an order denying his supplemental petition to modify alimony. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). The trial court abused its discretion in concluding that the filing date of the final dissolution judgment was the operative date from which to assess whether a subsequent substantial change in circumstances justified an alimony modification. Consequently, we reverse.[1]

         Background

         The parties married in October 1991. Mr. Dogoda filed for divorce in March 2013. Eventually, the parties entered into a marital settlement agreement (MSA) that resolved all outstanding issues between them. As relevant here, the MSA obligated Mr. Dogoda to pay monthly durational alimony of $1250.

         The MSA provided that it "shall become effective and enforceable when both parties have executed it." The MSA was fully executed by September 19, 2014. Unfortunately, the trial court did not enter a final judgment of dissolution until December 30, 2014. While awaiting entry of the final judgment, Mr. Dogoda made the required alimony payments called for by the MSA.

         Mr. Dogoda was a firefighter. During the time between execution of the MSA and entry of the final judgment, he engaged in fire department physical fitness drills. Because of his "horrible" performance, he considered retirement. He asked the City of Sarasota Firefighter's Pension Board about possible 2015 retirement dates. Mr. Dogoda had explored his retirement options yearly for the previous ten years. In early December 2014, the Pension Board approved Mr. Dogoda's retirement, effective January 23, 2015.

         Three months after his retirement, Mr. Dogoda petitioned for a downward modification of his alimony obligation. He cited to his reduced retirement income, which was due to the equitable distribution of his fire department retirement pension, coupled with the financial hardship caused by his monthly alimony payment. After an evidentiary hearing, the trial court entered an order denying Mr. Dogoda's petition.

         The trial court found that Mr. Dogoda's "retirement was contemplated prior to the actual [final judgment] being entered [on] December 30, 2014." More specifically, the trial court observed that "Mr. Dogoda took a step to activate or put into place his retirement effective January, 2015[;] . . . he took the step to have the Pension Board approve his retirement."

         Nonetheless, the trial court characterized Mr. Dogoda's retirement as "voluntary in nature" with "nothing about him retiring or exercising his retirement option to be spiteful or in any way to thwart Ms. Dogoda from receiving any benefits to which she is entitled." Rather, the trial court believed that it was constrained from awarding relief because Mr. Dogoda decided to retire before entry of the final judgment. Specifically, the trial court lamented that if it "could ignore the second prong of ...


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