Michael E. Holder, Former Husband v. Anna Marie Lopez, f/k/a Anna Marie Holder, Former Wife

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-1870
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MICHAEL E. HOLDER,
Former Husband,
Appellant,
v.
ANNA MARIE LOPEZ, f/k/a ANNA
MARIE HOLDER, Former Wife,
Appellee.
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On appeal from the Circuit Court for Wakulla County.
John C. Cooper, Judge.
June 7, 2019
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
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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.
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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
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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.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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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 §
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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 her lack of a permanent residence, 2 proceedings
continued upon the former husband’s supplemental petition for
modification. The final hearing was held in December 2017. The
hearing transcript reflects the parties’ wide-ranging testimony
and the court’s inquiries about matters not strictly essential to
resolution of the supplemental petition. The written order also
reflects the broad scope of the hearing and includes lengthy
narrative of various facts and observations, some relevant and
some inconsequential to the disposal of the supplemental
petition. The superfluous discussion tends to confuse, rather than
enlighten, our review of the trial court’s particular findings
necessary to support its ruling. However, ultimately the court
found “a substantial unanticipated change in circumstances of
the parties since entry of the last order” and that the former
husband’s “retirement from his job has resulted in a significant
reduction of income.” The court also found that the former wife
“is totally disabled and cannot work at all” and that she had
secured health insurance costing her only $31.00 per month.
Upon these substantial changes in the former husband’s financial
1The pertinent portions of section 61.14(1), Florida Statutes,
have not been amended since 2003.
2 The record reflects that the former wife lived primarily
with one adult son and visited other adult children of the
marriage.
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abilities and the former wife’s needs for insurance, the court
granted modification of the support provisions in the final
judgment.
The court’s finding substantial decreases in the former
husband’s financial circumstances and in the former wife’s need
for him to provide health insurance are not challenged on appeal.
And the former husband does not challenge the trial court’s legal
conclusion that modification was warranted based on these
changes in circumstances. Accordingly, the trial court’s ruling
that modification is warranted is not before us for our de novo
review. See Jarrard v. Jarrard, 157 So. 3d 332, 337 (Fla. 2d DCA
2015) (mixed standard of review for modifications of alimony
under § 61.14, Fla. Stat.; de novo review for legal conclusion that
modification is required by substantial change in circumstances);
Bauchman v. Bauchman, 253 So. 3d 1143, 1146 (Fla. 4th DCA
2018). Once grounds for any modification at all are established
(here, the requisite substantial change in circumstances), the
trial court’s decision whether to reduce or terminate alimony is
reviewed for abuse of discretion. Atkinson v. Atkinson, 157 So. 3d
473, 478 (Fla. 2d DCA 2015); Albu v. Albu, 150 So. 3d 1226 (Fla.
4th DCA 2014). The extent of the modification to the former
husband’s support obligation is the issue before us.
Focusing on the actual modification ordered by the trial
court, the order on appeal eliminates the former husband’s
obligations to provide the former wife with health insurance and
secure alimony with a life insurance policy. It also reduces the
alimony itself from $1,150.00 to $500.00. The former husband’s
monthly support obligations were thus reduced by $1,285.15,
from $1,785.15 to $500.00. The court made the reduced support
obligation retroactive to the filing date of the former husband’s
supplemental petition and determined that no arrearages of
alimony were due.
The former husband asserts on appeal that the trial court
abused its discretion by finding that the former wife continued to
have a need for any alimony and that he had any ability to pay.
“In determining the extent of modification, the trial court should
consider those factors listed in section 61.08, Florida Statutes, to
the extent that they are relevant in a modification proceeding.”
Albu, 150 So. 3d at 1228. “These factors include each party’s
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financial resources, earning capacities, employability, and
sources of income.” Id.
Both the transcript of the final hearing and the order on
appeal demonstrate the trial court’s proper consideration of the
statutory factors to support the determination “that a party has a
need for alimony or maintenance and that the other party has the
ability to pay alimony or maintenance.” § 61.08(2), Fla. Stat.
Under section 61.08(2)(b), the court found the duration of the
marriage was almost 25 years. As set out in subsections
61.08(2)(c), (2)(d), (2)(e), and (2)(i), the court considered the
former wife’s current need in light of her age (62), physical
condition (“totally disabled”), financial resources and sources of
income (Social Security Disability benefits and her portion of
former husband’s civil service and military retirement), and her
employability (“cannot work at all”).
The former husband does not assert on appeal that the court
failed to apply the proper statutory factors. Likewise, he does not
challenge the court’s conclusions under these factors. Rather, the
former husband argues that the trial court abused its discretion
by finding any need because the former wife was able to meet her
basic needs with her income. However, the former husband does
not challenge the trial court’s finding that the former wife “is able
to live on her meager income without a monthly deficit because
she is living with her son who is paying her housing expense.”
Without calculating a specific housing expense, the court found
generally that “she is in need of some financial assistance in the
form of alimony” and she “has a continued need.”
The majority interprets the trial court’s finding a continued
need of the former wife for “some financial assistance” as an
improper imputation of a speculative housing expense to the
former wife. The cases relied upon by the majority all concern
direct appeals of final judgments awarding alimony, not
modification proceedings. See Hedden v. Hedden, 240 So. 3d 148
(Fla. 5th DCA 2018); Ketcher v. Ketcher, 188 So. 3d 991 (Fla. 1st
DCA 2016); Kobe v. Kobe, 159 So. 3d 986 (Fla. 1st DCA 2015);
McCray v. McCray, 493 So. 2d 1117 (Fla. 1st DCA 1986).
Accordingly, the determination of a substantial change in the
recipient’s need since the entry of a final judgment awarding
alimony is not addressed in those cases.
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The parties’ and the court’s detailed discussion during the
final hearing about the accuracy of particular expenses of both
parties did not result in the court setting a particular dollar
amount of the former wife’s need based on a specific amount of
imputed expense, as might be appropriate for an initial award of
alimony in a final judgment. The former husband does not argue
on appeal that the court’s finding a continued need of the former
wife was based upon mathematical error in calculation of a dollar
amount.
The former husband fails to establish that the trial court
abused its discretion by finding that, despite the substantial
change in the parties’ financial conditions, the former wife
continued to need “some financial assistance.” Other than her
decreased need for insurance provided by the former husband,
there was absolutely no evidence that the former wife’s financial
circumstances had improved since the entry of the agreed-upon
alimony provisions in the final judgment.
The majority also finds the trial court abused its discretion
by imputing income to the former husband to support its finding
of his ability to pay the reduced alimony. While the court’s
expansive discussion of the former husband’s physical condition
and employability in contrast to those of the former wife suggests
the statutory factors for imputing income for child support
purposes, the trial court was not considering, and did not make
any ruling upon, an imputation of income pursuant to section
61.30(2)(b). The court’s unfortunate use of terminology — that it
was “appropriate to impute income to” the former husband, in the
amount of “minimum wage rate of $8.25 at a number of hours
equal to 50% of full-time” due to his voluntary retirement —
could be misleading as to the actual modification ordered by the
trial court. Like the former wife’s need, the “imputing” here was
the imputation of ability to pay and did not result in any dollar
amount used in any mathematical formula by the trial court in
the calculation of alimony.
The clear language in the order on appeal shows that the
trial court did not base the reduced alimony of $500.00 per month
on any imputed income. Unlike Leonard v. Leonard, 971 So. 2d
263 (Fla. 1st DCA 2008), the modification of alimony in this case
was not the result of imputed income supporting a calculation of
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a specified wage-earning capacity for purposes of setting the
alimony payment. In this case, the former husband’s ability to
pay the modified alimony amount was based on the court’s
cessation of his obligation to pay future insurance premiums to
secure his alimony payments ($187.20) and for health insurance
for the former wife ($447.95). The court’s termination of these
insurance obligations afforded the former husband more than
enough ability to pay his reduced alimony payments.
In view of the court’s actual modification of alimony, the
court’s discourse on the former husband’s capacity for
employment, minimum wage and possible part-time jobs for the
former husband was mere surplusage. Although the order on
appeal is not a model of clarity and contains an abundance of
dicta and other superfluous language, the former husband fails to
establish that the trial court abused its discretion by reducing,
but not eliminating, the alimony payment based on the
continuance of former wife’s need and his ability to pay the
reduced amount. Accordingly, I would affirm.
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Gena D. Fournier and Richelle M. Marsico, of Fournier Law,
PLLC, Tallahassee, for Appellant.
No appearance for Appellee.
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