A recently decided alimony case captioned Rodolph v. Rodolph involved two appeals by the husband.  Since both appeals involved the same parties and the same facts, the Florida Court of Appeal consolidated the cases into one appeal.  In Rodolph v. Rodolph, the husband appealed the lower court’s order denying his Supplemental Petition for Termination or Modification of Alimony.  Additionally, the Husband appealed the award of $39,000.00 in attorney’s fees to his wife.

In this case, the husband and wife were married for 33 years.  At the time of the divorce, the Husband had been a corrections officer for the Broward County Sheriff’s Office for twenty-four years.  In the final judgment of dissolution, the wife was granted permanent periodic alimony and a portion of husband’s retirement funds.  Husband filed a Supplemental Petition to Either Modify or Terminate Alimony.  Husband’s Supplemental Petition for Modification of Alimony alleged that husband did not have the ability to continue to pay alimony because he was involuntarily unemployed due to his heart condition, his neck and back problems, and carpal tunnel syndrome in his wrist and arm.  Husband also alleged that his wife no longer had a need for alimony because she received the first share of husband’s retirement funds, she was receiving disability payments and her monthly expenses were reduced. While Husband’s Supplemental Petition for Modification was pending, Wife filed a Motion for Contempt of Court against Husband because Husband ceased making alimony payments.

At the hearing on husband’s Supplemental Petition for Modification of Alimony, husband testified that he was receiving social security payments, but was earning no income.  He also testified that he remarried and was living with his new wife and her children. Husband purchased a new home and incurred various expenses.  In order to meet his expenses, husband withdrew $3,500 per month from his retirement account.  Wife testified that her expenses for rent, association fees, water, garbage, insurance, cable, and donations to religious organizations exceeded her income.

The trial court found that the wife’s expenses exceeded her income. The trial court went on to rule that despite husband’s retirement, he still had the ability to continue to pay alimony as a result of his receipt of social security payments and withdraws that he was making from his retirement account.

The Florida Court of Appeal reversed the trial court’s ruling.  It ruled that in order to obtain a modification of alimony, husband was required to show that there was a substantial change of circumstances that was not contemplated at the time that the divorce decree was issued.  The appellate court stated that this change of circumstances must be involuntary, material, sufficient and permanent.  Once the party seeking the modification proves that there has been a substantial change of circumstances, the trial court must then consider the statutory alimony factors in determining whether a reduction in alimony is appropriate.  One of these statutory factors is the financial resources of the parties and their sources of income.

The Florida Court of Appeal also pointed out that husband’s discretionary withdraws from his retirement account are not considered to be income for purposes of determining husband’s ability to pay alimony.  Discretionary withdraws from a retirement account are different than payments that are received from an IRA or a defined benefit pension plan because these provide fixed periodic payments and prohibit recipients from invading the principal.  Amounts taken from an IRA can vary and the principal can be immediately withdrawn.  Additionally, treating husband’s IRA withdrawals as income deprived husband of the full use of an asset that was the subject of equitable distribution at the time of the dissolution of marriage.

In contrast to discretionary withdrawals, mandatory IRA withdrawals and payments from a defined benefit pension plan are considered to be income for purposes of paying alimony because the amount of these withdrawals are calculated by using a set formula and the withdrawals are mandatory.  In this case, the trial court erroneously treated the husband’s discretionary withdrawals from his retirement account as income for purposes of calculating alimony.  What the trial court could have done, which it did not do, was to attribute income to the husband from the interest that the husband earned from his retirement account if this income was available to the husband without penalty or the need to reduce the principal.

Accordingly, the Florida Court of Appeal reversed the trial court’s ruling and remanded the case back to the trial court.  The appellate court also pointed out that the trial court’s award of attorney’s fees should have been based on the wife’s need and not based upon the husband’s superior financial circumstances.  The Florida Court of Appeal ordered the trial court to conduct an evidentiary on this issue as well.

To speak with a Palm Beach Gardens divorce attorney to discuss alimony in Florida, contact the Lane Law Firm, P.A. at (561) 363-3400.