Posted by Nydia Streets of Streets Law in Florida Alimony
Florida statutes no longer provide for awards of permanent alimony. For cases in which the parties agreed to permanent alimony or the court awarded permanent alimony before the law changed, modification may be warranted when the circumstances of either party changes. In the case Dwight v. Dwight, 5D2023-1347 (Fla. 5th DCA October 18, 2024), modification was at issue due to the payor’s retirement.
The parties entered a marital settlement agreement (MSA) in this case which obligated the former husband to pay permanent alimony. The clause about alimony in the agreement mentioned the former husband’s possible retirement. Once the former husband retired, he filed a petition for downward modification or termination of his alimony obligation. The former wife argued that because the former husband’s retirement was mentioned in the agreement, it was contemplated and therefore, the former husband’s petition should be denied. The trial court agreed and denied the petition, resulting in the former husband’s appeal.
The appellate court noted the pertinent language in the MSA about the former husband’s retirement:
Additionally, after a twenty-four (24) month period beginning November 1, 2020 (the “Non—Escrow Period”), should Husband still be obligated to pay permanent periodic alimony to Wife as set forth above and, further, should Husband either file a supplemental petition to modify said alimony on the basis of his retirement at any time after the Non—Escrow Period or otherwise have a supplemental petition to modify said alimony on the basis of his retirement pending at the expiration of the Non-Escrow Period then Husband shall be entitled to pay 50% of his then—current monthly alimony obligation to Wife into an agreed upon escrow account (the “Escrowed Alimony”) with the remaining 50% to be paid directly to Wife.
The appellate court noted “Mentioned in the parties’ MSA is the possibility that Former Husband could retire in the future, which certainly qualifies for describing his retirement as anticipated, foreseeable, considered, or contemplated. However, there is no evidence in the record to suggest that his retirement and resulting diminution or loss of income was accounted for, factored in, or baked into the alimony amount of $7,500. There was certainly no testimony to that effect during trial.” The court concluded “We hold that the trial court’s finding that Former Husband’s retirement was considered, contemplated, and accounted for in the MSA––thereby eliminating that change in circumstances as a basis for his petition for modification is erroneous because it is not supported by competent, substantial evidence. Accordingly, we reverse the final judgment and remand for further proceedings consistent with this opinion.”
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