final until disposition of timely filed motion for rehearing.
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).
Little Hoffmann of Nancy Little Hoffmann, P.A., Fort
Lauderdale, for appellant.
I. Finkel, Fort Lauderdale and Carin M. Porras of Brydger
& Porras, LLP, Fort Lauderdale, for appellee.
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
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.
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."
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.
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,
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."
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.
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
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 ...