Holder v. Lopez

• Decision Date: 07 June 2019
• Docket Number: No. 1D18-1870,1D18-1870
• Citation: 274 So.3d 518
• Parties: Michael E. HOLDER, Former Husband, Appellant, v. Anna Marie LOPEZ, f/k/a Anna Marie Holder, Former Wife, Appellee.
• Court: Florida District Court of Appeals

274 So.3d 518

Michael E. HOLDER, Former Husband, Appellant,

v.Anna Marie LOPEZ, f/k/a Anna Marie Holder, Former Wife, Appellee.

No. 1D18-1870

District Court of Appeal of Florida, First District.

June 7, 2019

Gena D. Fournier and Richelle M. Marsico, of Fournier Law, PLLC, Tallahassee, for Appellant.

No appearance for Appellee.

Kelsey, J.

Mr. Holder, Former Husband, retired from driving a tractor-trailer rig in January of 2017, at age sixty-five. He had been paying permanent periodic alimony since these parties divorced in 2003, but neither the parties' marital settlement agreement nor the final judgment dissolving their marriage addressed what would happen with alimony upon either party's retirement. After retiring, Former Husband petitioned for reduction or termination of alimony. The trial court reduced the alimony but did not terminate it, and Former Husband appeals that order. We reverse because the trial court erred in two respects: (1) imputing non-existent housing expenses to Former Wife; and (2) finding Former Husband voluntarily under-employed and imputing income to him without the required evidentiary basis. See § 61.08(2), Fla. Stat. (listing factors to be considered in evaluating need and ability to pay alimony); § 61.14(1)(a), Fla. Stat. (governing changes in alimony based on changed circumstances); see also Ketcher v. Ketcher , 188 So. 3d 991, 993 (Fla. 1st DCA 2016) (holding that award of alimony must be supported by findings of both need and ability to pay); McCray v. McCray , 493 So. 2d 1117, 1118 (Fla. 1st DCA 1986) (reversing alimony award where record did not support amount claimed as wife's need).

(1) Need: Imputing Expenses to Former Wife.

The trial court erred in finding that Former Wife demonstrated need. The evidence was undisputed that she received Social Security and Medicare disability benefits, plus a share of Former Husband's civil service and military retirement benefits, which was meeting her basic needs and leaving her a small surplus of monthly income. It was undisputed that she was not incurring housing expenses because she was living with her children on a rotating basis to spend time with grandchildren (apparently from an earlier marriage) and assist with their needs, and had a bungalow at her son's house. Even if there had been a present need for other housing, there was no evidence of what that would cost. The trial court erred in imputing housing expenses to Former Wife on this record. See Hedden v. Hedden, 240 So. 3d 148, 151-52 (Fla. 5th DCA 2018) (finding it an abuse of discretion to base alimony award on mere possibilities or speculation about future events); Kobe v. Kobe , 159 So. 3d 986, 987 (Fla. 1st DCA 2015) (concluding trial court erred in awarding alimony without sufficient record evidence and findings of actual expenses).

In addition, the record reflects that Former Wife has accumulated credit card debt that she attributed largely to purchasing craft supplies for her activities with her grandchildren, but the trial court did not consider the nature of these voluntary, non-essential expenses. Nor did the trial court consider that, if Former Wife, who claimed to be totally disabled, can assist with child-care and household needs for family members, she likely could do so for paying clients. An award of alimony should not exceed the recipient's actual, reasonable need. McCray , 493 So. 2d at 1118. On this record, the trial court erred in finding need, and therefore erred in failing to terminate Former Husband's alimony obligation.

(2) Ability to Pay: Imputing Post-Retirement Income to Former Husband.

Although the error in finding need is dispositive of this appeal, we address the error in the trial court's treatment of Former Husband's retirement, in the event it becomes relevant in future proceedings between these parties. Retirement is a changed circumstance warranting reconsideration of alimony. Pimm v. Pimm, 601 So. 2d 534, 537 (Fla. 1992) ("In determining whether a voluntary retirement is reasonable, the court must consider the payor's age, health, and motivation for retirement, as well as the type of work the payor performs and the age at which others engaged in that line of work normally retire."). The supreme court in Pimm noted that sixty-five "has become the traditional and presumptive age of retirement for American workers." Id. The court also noted that "[e]ven at the age of sixty-five or later, a payor spouse should not be permitted to unilaterally choose voluntary retirement if this choice places the receiving spouse in peril of poverty." Id.

Former Husband's decision to retire was reasonable. He was sixty-five years old, which he testified was five years older than the age at which most truckers retire. He had a variety of physical limitations and ailments related to age and the physical labor associated with thirty-six years of military service overlapping with twenty-one years working as a truck driver, for a total of nearly fifty years of work. The evidence of his physical limitations included Former Husband's testimony as well as documentation from a physician that Former Husband suffered from fibromyalgia, back pain, and fatigue, and was unable to work. These factors demonstrate reasonableness and a substantial change of circumstances warranting modification or termination of alimony. Id.

Although the trial court concluded that Former Husband was no longer physically able to continue driving a truck, the court nevertheless found that Former Husband was able to perform some kind of part-time work for minimum wage. It was error for the trial court to proceed to an imputed-income analysis, because the retirement was reasonable as supported by the undisputed evidence. A reasonable retirement under these circumstances does not constitute voluntary under-employment. Leonard v. Leonard, 971 So. 2d 263, 266 (Fla. 1st DCA 2008) (holding courts may not impute income unless the payor voluntarily declined to find work paying at or above previous earnings); Schram v. Schram , 932 So. 2d 245, 249-50 (Fla. 4th DCA 2005) (holding trial courts may not impute income without first finding that termination of employment was voluntary and that the underemployment was owing to "less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received") (quoting Konsoulas v. Konsoulas , 904 So. 2d 440, 443 (Fla. 4th DCA 2005) ).

In addition, even if there were a valid basis to impute income to Former Husband, the trial court erred in failing to base imputation on specific evidence of available jobs appropriate to Former Husband's experience and physical limitations, how much they would pay, and other pertinent factors such as competition for such jobs in the relevant marketplace. See Broga v. Broga, 166 So. 3d 183, 185 (Fla. 1st DCA 2015) (requiring evidence and findings of "the employment potential and probable earnings ... based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available," under § 61.30(2)(b), Fla. Stat.); Vallette v. Vallette, 693 So. 2d 1121, 1121 (Fla. 4th DCA 1997) (requiring current evidence of skills and of available jobs in the current market at similar income); Cooper v. Cooper , 639 So. 2d 153, 155 (Fla. 2d DCA 1994) (holding imputed income must be "based on a finding that the husband is capable of earning a specified, imputed amount and that he could, in fact, earn this amount by using his best efforts"). Former Wife had the burden of proving these factors. Burkley v. Burkley, 911 So. 2d 262, 269 (Fla. 5th DCA 2005). She failed to do so. Although the trial court ultimately adjusted other obligations to create a paper surplus of a few hundred dollars to be paid to Former Wife, the finding of ability to pay appears to have been based on the improperly imputed income, which did not establish ability to pay.

REVERSED .

Rowe, J., concurs; Bilbrey, J., dissents with opinion.

Bilbrey, J., dissenting.

The former husband appeals the trial court's order modifying the final judgment of dissolution of marriage because it reduced, but did not eliminate, his permanent periodic alimony obligation to the former wife. Applying the appropriate law to our review of the trial court's order, I am compelled to respectfully dissent and would affirm the order.

The final judgment, entered in September 2003, incorporated the parties' marital settlement agreement, including provisions for former wife's support. The marital settlement agreement required the former husband to provide the former wife with health insurance, portions of his retirement accounts, and $ 1,150.00 per month in permanent periodic alimony secured by an insurance policy on his life. The alimony and insurance premiums amounted to a monthly obligation of $ 1,785.15 payable by the former husband. No appeal was taken from the final judgment.

Thirteen years later, in February 2017, the former husband filed his supplemental petition for modification or termination of his alimony and insurance premium obligations. See § 61.14(1)(a), Fla. Stat. (2018).¹ He alleged several substantial changes in his circumstances, including his recent voluntary retirement at age 65 from his physically demanding trucking job and his declining physical health. The former husband had remarried but the former wife had not. According to the former husband, the former wife's financial circumstances had also substantially changed since the final judgment due to her qualification for, and receipt of, Social Security Disability benefits and health care coverage through Medicare. Other than the receipt by the former wife of her portion of the former husband's retirement benefits as originally awarded, the former husband did not allege any increase in the former wife's income or earning capacity since the 2003 final judgment.

After a delay in obtaining service upon the former wife caused by...