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Gelber v. Brydger

Florida Court of Appeals, Fourth District

June 6, 2018

MARJORIE GELBER, f/k/a MARJORIE GELBER BRYDGER, Appellant,
v.
GORDON CHARLES BRYDGER, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal and cross-appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Timothy L. Bailey, Judge; L.T. Case No. FMCE 03-012331 (41/93).

          Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale, for appellant.

          Barry I. Finkel, Fort Lauderdale and Carin M. Porras of Brydger & Porras, LLP, Fort Lauderdale, for appellee.

          GROSS, J.

         This is a case where the former husband sought a downward modification of alimony once his former wife reached the age of 59 ½ and could access retirement accounts without penalty. We hold that a former spouse's ability to access substantial retirement accounts without penalty is one factor which may be considered as part of the total circumstances in determining if there has been a sufficient change to warrant a downward modification of alimony, provided that a marital settlement agreement or final judgment has not already taken the retirement accounts into consideration in setting alimony.

         After a 27-year marriage, Marjorie Gelber and Gordon Brydger divorced on August 31, 2004. The final judgment incorporated a marital settlement agreement ("MSA") which required the former husband to pay $6, 375 per month in permanent periodic alimony until either party died or the former wife remarried.

         Under the MSA, as part of equitable distribution, the former wife received various retirement and annuity accounts (collectively, "retirement accounts"). Nothing in the MSA required the former wife to invade the retirement accounts for income. The MSA did not take into consideration the eventual income that the former wife would receive from the retirement accounts, without penalty, once she reached retirement age. The MSA made the alimony obligation "modifiable in accordance with Florida Statutes."

         In 2014, the former husband filed a supplemental petition for modification of alimony. The former husband had not yet retired and had the ability to pay the alimony required by the MSA. Nevertheless, he sought modification because the former wife's retirement accounts had appreciated and the former wife had reached the age of 59 ½, so she could take distributions from the accounts without penalty.

         At trial, the former husband focused on the former wife's financial circumstances. Through the MSA at the time of dissolution, the former wife received the $657, 327 in retirement accounts as well as over $500, 000 in other investments. Her 2005 monthly income was $3, 437 from wages and non-retirement investment accounts. By 2014, the retirement accounts had appreciated to $1, 028, 965 and her retirement accounts and investments totaled $1, 600, 000 for which the stipulated return was 3.75%. This yielded a monthly income from investment accounts and retirement accounts of $5, 000 per month. In addition to income available from investment and retirement accounts, the former wife had social security disability income of $1, 027 per month and pension benefits of $675 per month. Her monthly need was $7, 674.

         In an amended final judgment, the circuit court found that the former husband demonstrated a substantial change in the former wife's income from $3, 400 per month in 2004 to $7, 100 per month in 2014 upon turning age 59 ½ when she could access the income from her retirement accounts without penalty. The court found that the change in available income from 2004 to 2014 was "unanticipated" because "the $5, 000 a month generated from her retirement assets as of 2014 was not and could not be attributed to her in 2004."

         The court found that all of the witnesses testified that the former wife's income from her retirement accounts was not considered or factored into the alimony amount when it was fixed in the MSA.

         The court concluded that the former wife's need for alimony was $1, 735 per month and reduced the former husband's alimony obligation to that amount, retroactive to the date of the petition.

         We write to address the former wife's argument that her ability to access the retirement accounts without penalty at age 59 ½ was not an unanticipated change in circumstances. She argues that such a known event is "foreseeable" and that "[a]limony may ...


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