Posted by Nydia Streets of Streets Law in Florida Alimony
Recently, a Florida appellate court issued an opinion which will no doubt have an impact on modifying alimony in Florida. The case Gelber v. Brydger, 4D17-295 (Fla. 4th DCA 2018) explored the issue of what can be considered an unanticipated change in circumstances in modifying alimony.
The undisputed facts were as follows: The parties entered a marital settlement agreement in which the husband agreed to pay the wife over $6,000 per month in permanent alimony. The same agreement awarded retirement accounts to the wife. The agreement was silent as to what would happen when the wife reached retirement age (i.e. whether the wife's income at the time she was allowed to withdraw from the retirement accounts without penalty was used to determine the alimony), and the agreement stated the alimony was modifiable according to Florida law.
When the wife reached the age of 59 and 1/2, the husband filed a petition to modify alimony, arguing the wife could now withdraw from her retirement accounts without penalty, and therefore circumstances had changed warranting a reduction in alimony. The trial court found the wife's retirement accounts had increased significantly in value and that she could expect to receive $5,000 per month from the accounts. It therefore reduced her alimony award to under $2,000.00 per month.
The wife appealed, arguing Florida law states an unanticipated change in circumstances is what must be shown to modify alimony. She maintained that it was anticipated or foreseeable that she would eventually reach retirement age and that she could withdraw funds at her retirement age. The appellate court disagreed, holding, "As a prerequisite to the modification of an alimony award, the notion of an "anticipated" change in circumstances has crept into Florida law over the years. We often see it argued, as in this case, to preclude changes that were "foreseeable" at the time of the original final judgment. The word choice of "anticipated" has been unfortunate because it has transformed a very different concept into something that it is not [. . .] This was not a case where the retirement accounts had been taken into consideration to determine the former wife's current income in a final judgment or MSA. The MSA made alimony "modifiable in accordance with Florida Statutes" and section 61.14(1)(a) makes alimony modifiable "as equity requires" where circumstances have changed. Finding no abuse of discretion, we affirm the trial court's order granting modification, including the issues raised on the cross-appeal."
This case clarifies what an unanticipated change means when it comes to modifying Florida alimony. If you believe you have grounds to modify a Florida alimony judgment, schedule a consultation with a Miami divorce lawyer to go over your case and determine how to proceed.