Opinion
No. 2D20-3042
10-20-2021
Dennis R. TANNER, Appellant, v. Jamie D. TANNER, Appellee.
Jean M. Henne of Jean M. Henne, P.A., Winter Haven, for Appellant. Samuel A. Walker of CPLS, P.A., Orlando; and Tee Persad of CPLS, P.A., Orlando, (substituted as Counsel of record), for Appellee.
Jean M. Henne of Jean M. Henne, P.A., Winter Haven, for Appellant.
Samuel A. Walker of CPLS, P.A., Orlando; and Tee Persad of CPLS, P.A., Orlando, (substituted as Counsel of record), for Appellee.
MORRIS, Chief Judge. Dennis R. Tanner, the former husband, appeals an order denying his supplemental petition for modification of the final judgment of dissolution of marriage and granting a motion for contempt and enforcement filed by Jamie D. Tanner, the former wife. We reverse the portions of the order relating to alimony.
The parties' thirty-three-year marriage was dissolved in January 2016. The final judgment of dissolution required the former husband to pay permanent periodic alimony to the former wife in the amount of $1,000 per month. This amount was based on findings that the former husband earned $4,993.73 per month and that the former wife earned $432 per month. The final judgment recognized that "the [former] husband was nearing what is considered the standard retirement age of 65 and that upon retirement, the [former] husband's ability to pay alimony and the [former] wife's need may be greatly diminished, possibly requiring a modification, once all matters are considered by the Court at that time."
In September 2018, the former husband filed a supplemental petition for modification of the final judgment of dissolution, seeking to reduce or eliminate the alimony award based on a substantial change in circumstances. He alleged that he was required to take an early retirement and that his medical condition prevented him from finding comparable employment. In June 2020, the former wife filed a motion for contempt and enforcement, arguing, among other things, that the former husband had stopped paying the required alimony. After an evidentiary hearing in August 2020, the trial court denied the former husband's supplemental petition, finding that his early retirement at age sixty-four was unreasonable. The trial court also found the former husband in contempt of the final judgment of dissolution for failing to pay alimony after filing the petition for modification and for failing to maintain a life insurance policy for the alimony. The trial court ordered the former husband to pay an alimony arrearage in the amount of $25,000. The trial court also made rulings on other issues not relevant to this appeal.
On appeal, the former husband argues that the trial court erred in finding that he had not established a substantial change in circumstances warranting a modification of alimony. He contends that his retirement was reasonable, based on his age and failing health.
In moving to modify an existing alimony support order, a "petitioner must show ‘that (1) there has been a substantial change in circumstances, (2) the change was not contemplated at the time of the final judgment of dissolution, and (3) the change is sufficient, material, permanent, and involuntary.’ " Dogoda v. Dogoda , 233 So. 3d 484, 486 (Fla. 2d DCA 2017) (quoting Jarrard v. Jarrard , 157 So. 3d 332, 336 (Fla. 2d DCA 2015) ). "[R]etirement, if reasonable, can support the finding of a substantial change in circumstances." Id. (citing Pimm v. Pimm , 601 So. 2d 534, 535 (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 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 in August 2020, the former husband was sixty-six years old. He had retired in August 2018, six months before he turned sixty-five, because his employer had informed him it was unable to accommodate his return to work after he had taken a leave of absence and received short-term disability benefits. He had no intention of going back to work because he was unable to continue to perform the duties he had been performing for forty years as an electrical instrument technician. He was required to work twelve-hour shifts that consisted of manual labor, and he was no longer in a physical condition to be able to work such shifts because he suffers from COPD, diabetes, and multiple sclerosis. The former husband made the decision to retire based on his health condition.
In its order, the trial court found that none of the former husband's health issues prevented him from working in his current position and none were supported by his employer's insurance carrier. The trial court made reference to a letter from his employer, which stated that the carrier denied continuation of his short-term disability benefits and that his employer had stated that it was "unable to accommodate [his] return to work with or without a reasonable accommodation." However, there was no evidence explaining or interpreting this letter from his employer, explaining or interpreting the denial of benefits from the carrier after he had received four months of short-term disability benefits from the carrier, or otherwise showing that the former husband did not suffer from the health issues to which he testified at the hearing. In light of the former husband's age, the unrefuted evidence of the former husband's health issues, and the nature of his work, the trial court erred in finding that the former husband's retirement was unreasonable. The former husband was six months shy of the presumptive age of retirement, and he presented evidence that he was unable to continue to perform the work he had been doing for forty years. See Holder v. Lopez , 274 So. 3d 518, 521 (Fla. 1st DCA 2019) (holding that former husband's retirement as a trucker at age sixty-five was reasonable where there was evidence that he had a variety of physical limitations).
Even if it was unreasonable for the former husband to retire early, it was reasonable for him to retire at sixty-five based on the presumptive age of retirement and the facts of this case. The trial court failed to consider the former wife's needs at the time of the former husband's retirement, as required by Pimm . The trial court found that the former wife receives a monthly disability of $550, but the former wife testified that in addition to her disability benefit, she also now receives $693.15 from the former husband's pension. The trial court failed to consider this pension income, as well as the fact that the former wife is not in peril of poverty. The former wife's monthly expenses are $1053, but she currently earns more than that in disability and pension payments. The continuation of permanent periodic alimony exceeds the former wife's needs. See Rosecan v. Springer , 845 So. 2d 927, 929 (Fla. 4th DCA 2003) ("Absent special circumstances which do not appear in the judgment, an alimony award should not exceed a spouse's need. One spouse's need is a crucial component in the alimony equation." (citation omitted)).
Further, the trial court appeared to find, and the former wife argues on appeal, that the final judgment of dissolution contemplated the former husband's retirement when it awarded permanent periodic alimony. That is an unreasonable interpretation of the final judgment. The final judgment simply acknowledged the presumptive retirement age, as the law does, and the final judgment explicitly stated that the former husband's impending retirement may require a modification.
In sum, the trial court erred in denying the former husband's supplemental petition for modification, and therefore, we reverse the order on appeal at it relates to alimony. The former husband's petition should have been granted retroactive to the date of his filing. See Thyrre v. Thyrre , 963 So. 2d 859, 862 (Fla. 2d DCA 2007) ("Retroactivity is the rule rather than the exception which guides the trial court's application of discretion when modification of alimony or child support is granted." (quoting DeSantis v. Smith , 634 So. 2d 796, 797 (Fla. 4th DCA 1994) )). Accordingly, the award of alimony arrearage in the amount of $25,000 must also be reversed. In addition, because a change in alimony should have been granted and an alimony arrearage is no longer required to be paid, the portion of the order requiring the former husband to maintain a life insurance policy and finding him in contempt for failing to maintain the policy is also reversed. We affirm the remainder of the order, as it is not challenged on appeal and does not relate to alimony.
Affirmed in part, reversed in part, and remanded.
SILBERMAN and LaROSE, JJ., Concur.