Rogers v. Rogers

• Decision Date: 08 December 1999
• Docket Number: No. 99-00294.,99-00294.
• Citation: Rogers v. Rogers, 746 So.2d 1176 (Fla. App. 1999)
• Parties: Mary F. ROGERS, Appellant, v. Jerome R. ROGERS, Appellee.
• Court: Florida District Court of Appeals

746 So.2d 1176

Mary F. ROGERS, Appellant, v.Jerome R. ROGERS, Appellee.

No. 99-00294.

District Court of Appeal of Florida, Second District.

December 8, 1999.

Thomas H. McGowan of Rahdert, Anderson, McGowan & Steele, P.A., St. Petersburg, for Appellant.

Nicholas L. Ottaviano, Clearwater, for Appellee.

ALTENBERND, Judge.

Mary F. Rogers("former wife") appeals an order terminating the obligation of Jerome R. Rogers("former husband") to pay her permanent periodic alimony.We reverse because the law places a significant burden on the former husband to justify a voluntary retirement at age 56, especially when that retirement will leave the former wife destitute.Mr. Rogers failed to present evidence satisfying this significant burden.SeePimm v. Pimm,601 So.2d 534(Fla.1992).

The parties were divorced in 1992 after 33 years of marriage.At the time of the final hearing, the former husband was employed with Honeywell, Inc., earning a net income of approximately $2300 per month.The former husband had accrued significant retirement benefits through this employment during the marriage, but was not eligible to receive those benefits until at least age 55.The former wife had not been employed during the marriage except for brief periods.In the original final judgment of dissolution, the trial court ordered the sale of the marital home and an equal division of the former husband's future retirement benefits.The trial court also ordered the former husband to pay permanent periodic alimony to the former wife in the amount of $625 per month, commencing after the sale of the home.

On appeal, this court reversed the final judgment, holding that the trial court should have granted the former wife's request to award her the home in lieu of any interest in the future retirement benefits.SeeRogers v. Rogers,622 So.2d 96(Fla. 2d DCA1993)(Rogers I).We reasoned that it was unfair to condition the former wife's interest in the former husband's pension upon the former husband's survival until retirement age.We directed the trial court to award the former wife the marital home, which had not yet been sold, and to award the former husband his retirement benefits.We noted in our opinion:

Having awarded Mrs. Rogers the husband's interest in the marital home as a lump sum distribution of the pension benefits, we note that injustice would result if the same asset was used to calculate both a property distribution and a party's support obligation.Because one-half of Mr. Rogers' pension will be distributed as marital property, the wife's percentage of the pension may not be considered as a source of payment of alimony after the husband retires and begins collecting his benefits.Diffenderfer,491 So.2d at 267.

Rogers,622 So.2d at 99.We also required a re-evaluation of the amount of permanent periodic alimony on remand.Upon reconsideration of the alimony, the trial court entered an order on December 15, 1993, requiring the former husband pay permanent alimony of $900 per month based upon the income he received from his employment.

In February 1996, after attaining thirty years of employment with Honeywell, the former husband retired at age 56.The former husband incorrectly interpreted our opinion as automatically terminating his alimony obligation immediately upon his retirement.When he discovered his error, he filed a supplemental petition for modification of alimony on February 26, 1996.However, he did not set the cause for trial until the former wife obtained a qualified domestic relations order enforcing the unpaid alimony obligation that accrued after the filing of his supplemental petition.

A final hearing was held October 7, 1998.It is helpful to consider the former husband's burden at that hearing as stated by the supreme court in Pimm:

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 age of sixty-five years has become the traditional and presumptive age of retirement for American workers....Based upon this widespread acceptance of sixty-five as the normal retirement age, we find that one would have a significant burden to show that a voluntary retirement before the age of sixty-five is reasonable.Even 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.Thus, the court should consider the needs of the receiving spouse and the impact a termination or reduction of alimony would have on him or her.In assessing those needs, the court should consider any assets which the receiving spouse has accumulated or received since the final judgment as well as any income generated by those assets.

Pimm,601 So.2d at 537.

At the hearing, the former husband presented the testimony of a psychiatrist he had seen on one occasion in February 1998.Based on that one consultation, the psychiatrist diagnosed a major depressive reaction and concluded the former husband could not perform a job similar to his position at Honeywell.The psychiatrist had prescribed Zoloft for the depression, but testified the depression was "most likely" going to persist despite treatment.The psychiatrist admitted that he had no knowledge, other than the former husband's statements, of the former husband's medical condition in 1996 when he retired, nor had the psychiatrist performed any follow-up treatment in the eight months since his only contact with the former husband.

The former husband had various reasons for retiring.He testified that he retired because he had reached thirty years of service, apparently the years of service he needed to retire and receive these benefits.Before he retired, his job at Honeywell had become increasingly menial, but his salary and benefits had remained unchanged.He testified that he had some health problems at the time of his retirement, but offered no medical evidence to support his self-serving testimony.There was no evidence that these health problems were debilitating or continuing in nature.The most serious health problem was an incidence of kidney cancer that had been treated by surgery while he was still employed.He received a paid leave of absence for his recovery and the cancer had not recurred.

On cross-examination, the former husband was asked to explain once again why he had retired, and in response he...