Bain v. Bain

• Decision Date: 07 February 1997
• Docket Number: No. 96-826,96-826
• Citation: Bain v. Bain, 687 So.2d 79 (Fla. App. 1997)
• Parties: 22 Fla. L. Weekly D381 Addison L. BAIN, Appellant, v. Ingeborg K. BAIN, Appellee.
• Court: Florida District Court of Appeals

Page 79

687 So.2d 79

22 Fla. L. Weekly D381

Addison L. BAIN, Appellant, v.Ingeborg K. BAIN, Appellee.

No. 96-826.

District Court of Appeal of Florida Fifth District.

Feb. 7, 1997.

James R. Dressler, Cocoa Beach, for Appellant.

Paul M. Goldman of Dean, Mead, Spielvogel, Goldman & Boyd, Merritt Island, for Appellee.

GOSHORN, Judge.

Addison Bain(the "former husband") appeals the order denying his motion to modify the final judgment of dissolution.He argues that the court erred in denying his petition for modification and further that it erroneously included his retirement benefits as income in determining his ability to pay alimony.

This is the second appearance of the Bains in this court.SeeBain v. Bain, 553 So.2d 1389(Fla. 5th DCA1990).In Bain, the former husband appealed the disproportionate division of marital assets to the former wife.This court reversed and remanded for the trial court to re-address the distribution of assets as well as the permanent alimony award.Labeling the former husband's civil service retirement pension as an "area of concern,"we cautioned, "We note also a danger that the retirement pension will ultimately be used as a basis for determining alimony as well as for equitable distribution purposes."Id. at 1391, 1392.

On remand, the trial court reduced the former husband's civil service retirement benefit to a present dollar amount and treated it as a marital asset subject to distribution.The court divided the assets 50-50.The former husband's share consisted almost entirely of his pension, with the exception of $6,466 of the present value thereof which was awarded the former wife to equalize the distribution.Neither party appealed this judgment.

In May, 1994, the former husband filed his supplemental petition to modify the amended final judgment, alleging therein a substantial change in circumstances.He cited the fact that he had been forced to retire at age 58 and accordingly had suffered a substantial decline in his income.He asserted that the former wife, in the meantime, had enjoyed income from her employment as a real estate agent that was greater than anticipated at the time of the dissolution.She further had attained the age needed to begin drawing on her own social security retirement benefits.The former husband contended that he was unable to pay alimony at the rate ordered in the amended final judgment and that the former wife was not in need of the amount ordered.

The former husband, who was 60 years old at the time of the hearing, was employed by NASA until May 3, 1994, on which date he retired.He denied wanting to retire at that time, pointing out that he had been eligible to retire in September, 1992, but had continued working.However, cutbacks began occurring in his industry.He took steps to protect his employment, such as seeking a reclassification and a promotion, but was unsuccessful.His position was frozen, and he learned that 82 positions were being eliminated.At this point, the former husband applied for a buy-out program NASA was offering.

The former husband stated that he accepted the buy-out only because of the prevailing circumstances.He testified that he wants to work and had taken affirmative steps to obtain employment, including sending numerous resumes to both in-state and out-of-state employers in his field and contacting prospective employers weekly.He continues to serve on state and federal energy panels to network with people in his industry.The former husband also set up his own consulting business.He provided services to a gas company for over five months and earned $5850.Unfortunately, the company terminated all of its consulting contracts.He eventually landed another consulting job with a Tallahassee firm, from which he earned $700.Those two jobs provided his only income, other than his retirement income, since May, 1994.

The trial court found that the former husband filed for retirement in anticipation of being laid off.While he had made a good faith effort to become re-employed, the court continued, the former husband was "probably capable of earning income over and above his retirement."It denied the former husband's petition.

It appears the trial court implicitly agreed that the former husband's choice of taking the buy-out rather than waiting to be laid off was reasonable and prudent.Indeed, the former husband's position was later eliminated.These facts support a conclusion that the former husband did not voluntarily retire, but rather was pushed out.Certainly there is no suggestion that he sought to leave the work force.Rather, the evidence was uncontradicted that the former husband wanted to work for NASA and would have continued there had it not appeared inevitable that his position was going to be terminated.Under these circumstances, the trial court erred in failing to abate support until such time as the former husband becomes re-employed.SeeBennett v. Department of Revenue, 664 So.2d 33(Fla. 5th DCA1995)(holding that it was error to continue the support obligation where the payor had become unemployed and lacked the ability to pay...