         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


SUSAN HEDDEN,

             Appellant,

 v.                                                     Case No. 5D17-427

MICHAEL HEDDEN,

             Appellee.

________________________________/

Opinion filed March 16, 2018

Appeal from the Circuit Court
for Orange County,
Mike Murphy, Judge.

Joel C. Wilson, of Wilson Law Firm P.L.,
Orlando, for Appellant.

Jonathan R. Simon, and Jill D. Simon, of
The Orlando Family Firm, Orlando, for
Appellee.


EDWARDS, J.

      Susan Hedden (“Former Wife”) appeals the Amended Final Judgment dissolving

her thirty-seven-year marriage to Michael Hedden (“Former Husband”). She argues that

the trial court erred by not classifying all of the alimony awarded as permanent, relying

solely on Former Husband’s most recent financial affidavit to determine his ability to pay

alimony, and not including future employer-made retirement contributions in Former
Husband’s income. There was no competent, substantial evidence to support an award

consisting of both durational and permanent alimony. However, the trial court did not

abuse its discretion by relying upon Former Husband’s most recent financial affidavit and

his testimony in determining his ability to pay alimony, nor by excluding employer-made

retirement account contributions from Former Husband’s income. Thus, we reverse in

part and affirm in part.

       For the majority of their marriage, Former Wife was a stay-at-home mother to the

parties’ two children. She has no special training, certificates, or degrees, and during

those occasional periods when she was employed—most recently twelve years prior to

trial—she earned approximately $20,000 per year. Her medical condition limits her ability

to search for employment. She requested permanent alimony, but agreed that she could

probably be employed at minimum wage.

       Former Husband had been the “primary breadwinner” during the marriage, earning

a relatively stable salary with fluctuating bonuses that led to his annual income being

between $146,000 and $191,000 during the three years prior to trial. However, his

employer replaced bonuses, which were based on the company’s performance, with

commissions, which were based upon Former Husband’s personal performance. This

change reduced Former Husband’s overall annual income. In response to Former Wife’s

request for alimony, he pointed out that he was less than a year from the presumptive

age of retirement and that each of them would receive approximately $500,000 in marital

assets through equitable distribution.

       In the final judgment of dissolution of marriage, the court found that Former Wife

had a need for alimony and Former Husband had the ability to pay alimony. After the




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court imputed minimum wage to Former Wife, it ordered Former Husband to pay Former

Wife $1000 per month in permanent periodic alimony and $2700 per month in durational

alimony. The durational alimony was to cease when Former Wife reached the age of

sixty-two. The court found that, at age sixty-two, Former Wife will be eligible to receive

Social Security benefits based on Former Husband’s income. Former Wife filed a motion

for rehearing regarding several issues, but the court denied her request to revisit the

issues on alimony.

       Former Wife asserts that it is improper to award durational alimony when there is

an ongoing need for alimony and argues that the trial court’s decision contradicts the

presumption of permanent alimony in long-term marriages.

       “In a proceeding for dissolution of marriage, the court may grant alimony to either

party, which alimony may be bridge-the-gap, rehabilitative, durational, or permanent in

nature or any combination of these forms of alimony.” § 61.08(1), Fla. Stat. (2016).

“There is a rebuttable presumption that permanent periodic alimony is appropriate after a

long-term marriage.” Motie v. Motie, 132 So. 3d 1210, 1213 (Fla. 5th DCA 2014).

“Subsection 61.08(4) establishes a ‘rebuttable presumption’ that a marriage having a

duration of seventeen years or greater is a long-term marriage.” Taylor v. Taylor, 177 So.

3d 1000, 1003 (Fla. 2d DCA 2015).

       It is undisputed that the parties had a long-term marriage. The trial court reviewed

all ten factors identified in section 61.08(2) and found permanent alimony was

appropriate, and that “no other form of alimony is fair and reasonable under the

circumstances of the parties . . . .” See § 61.08(8), Fla. Stat. (2016).




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      Durational alimony, which the trial court also awarded, was created to be “an

intermediate form of alimony between bridge-the-gap and permanent alimony.” Nousari

v. Nousari, 94 So. 3d 704, 706 (Fla. 4th DCA 2012). “The purpose of durational alimony

is to provide a party with economic assistance for a set period of time following . . . a

marriage of long duration if there is no ongoing need for support on a permanent basis,”

and it “may be awarded when permanent periodic alimony is inappropriate.” § 61.08(7),

Fla. Stat. (2016). According to the statutory language in section 61.08(7), a court cannot

award durational alimony if permanent alimony is appropriate; however, section 61.08(1)

and case law allow the trial courts to award both if justified. See Purin v. Purin, 158 So.

3d 752, 753 (Fla. 2d DCA 2015) (suggesting that on remand the trial court should award

both durational and permanent periodic alimony to minimize the need for future litigation

should the wife’s needs exceed her actual rather than earning ability after the period of

durational alimony ended). Here, the trial court’s finding of Former Wife’s ongoing need

for support made permanent periodic, rather than durational, alimony the appropriate

choice following the thirty-seven-year marriage.

      Furthermore, the trial court abused its discretion to the extent that ordering

durational alimony was based on its prediction that Former Wife would have an increased

income by seeking and receiving Social Security benefits when she reaches sixty-two

years of age. Courts should base alimony awards “on current existing circumstances,

and not on possibilities likely but as yet unrealized.” Winn v. Winn, 669 So. 2d 1155, 1157

(Fla. 5th DCA 1996). In Stark v. Stark, the trial court awarded the wife both durational

and permanent alimony. 192 So. 3d 632, 632 (Fla. 5th DCA 2016). However, this Court

concluded “that the trial court abused its discretion in failing to make the entire $5000




                                            4
alimony award . . . permanent alimony” after finding that “the evidence failed to

demonstrate that the Wife’s need or the Husband’s ability to pay would be materially

different at the end of the durational alimony period than it was at the time the amended

final judgment was entered.” Id. at 633.

       Although Former Wife may be eligible to receive Social Security when she reaches

the age of sixty-two, it is unknown whether she will elect to receive partial benefits at that

time or choose full benefits, which would only be available at a later time. The trial court

properly found that it could not base the alimony award on Former Husband’s future

retirement, so it likewise should not diminish the alimony award based on the potential

availability of future Social Security benefits.    See, e.g., Purin, 158 So. 3d at 754

(“Retirement merely allows the trial court, upon proper motion, to revisit the parties’

respective needs and ability to pay as they relate to the underlying alimony award.”).

Therefore, on the facts of this case, we conclude that the trial court abused its discretion

when it failed to designate the entire alimony award as permanent periodic alimony.

       Former Wife also argues that the trial court abused its discretion in basing its

determination of Former Husband’s ability to pay alimony solely on his most recent

financial affidavit, when his income had been much higher in the recent past. Courts are

required to consider all sources of a party’s income when determining alimony.              §

61.08(2)(i), Fla. Stat. (2016). When “a trial court calculates income for the purpose of

awarding child support or alimony, it may not exclude from consideration bonuses that

are regular and continuous.” Drew v. Drew, 27 So. 3d 802, 802 (Fla. 2d DCA 2010).

When “bonuses are regular and continuous, it is an abuse of discretion to exclude them




                                              5
from consideration when making support awards.” Parry v. Parry, 933 So. 2d 9, 16 (Fla.

2d DCA 2006).

       Here, the record is clear that Former Husband’s prior income consisted of a salary

with bonuses, while his current income consisted of a salary with lower commissions.

The trial court did not disregard the commissions; rather, it properly considered Former

Husband’s financial affidavit and trial testimony as evidence of his current ability to pay

alimony. Thus, we find no abuse of discretion.

       Former Wife also asserts that the trial court should have included as ongoing

income the matching 401(k) contributions made by Former Husband’s employer to his

retirement account. In determining the amount of alimony, “the needs of a spouse should

be based on that spouse’s financial situation after, not before, equitable distribution.”

Acker v. Acker, 904 So. 2d 384, 389 (Fla. 2005). “Accordingly, the portion of a pension

which has been equitably distributed to a spouse cannot be considered in determining

the other spouse’s ability to pay alimony because the other spouse obviously no longer

has that portion of the marital asset.” Id. Here, the trial court included the value of the

retirement accounts at the time of the final hearing as part of the equitable distribution

scheme and gave each party approximately fifty percent. Post-dissolution, Former Wife

is not entitled to any contributions to Former Husband’s retirement plans. See Bain v.

Bain, 553 So. 2d 1389, 1391 (Fla. 5th DCA 1990) (“[T]he valuation of a retirement plan

should exclude any contributions made after the original final judgment of dissolution.”).

In the future, both Former Wife’s and Former Husband’s actual retirement benefits may

be relevant should either party petition for modification of alimony. However, the trial




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court did not abuse its discretion in excluding the future employer contributions at this

point.

         Accordingly, we reverse and remand for the trial court to enter an amended

judgment that classifies the entire alimony award as permanent periodic in nature. As to

all other issues raised by Former Wife, we affirm.

         AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH

INSTRUCTIONS.




ORFINGER and LAMBERT, JJ., concur.




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