       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                       ROBERT W. BAUCHMAN,
                            Appellant,

                                    v.

                          BERTA BAUCHMAN,
                              Appellee.

                        Nos. 4D17-35 & 17-1471

                           [August 15, 2018]

   Consolidated appeals from the Circuit Court for the Nineteenth Judicial
Circuit, Indian River County; Robert L. Pegg, Judge; L.T. Case No.
312004DR050470FR01.

    Amy D. Shield and Roger Levine of Shield & Levine, P.A., Boca Raton,
for appellant.

  Karen O’Brien Steger and Lori Steger of Steger & Steger, Stuart, for
appellee.

KLINGENSMITH, J.

    Robert W. Bauchman (“former husband”) timely appeals a final
judgment denying modification of alimony. He challenges the trial court’s
finding that former husband’s impending retirement and the improved
financial circumstances of Berta Bauchman (“former wife”) did not
constitute a substantial change of circumstances warranting modification.
Additionally, he challenges the trial court’s award of attorney’s fees to
former wife. We find merit as to former husband’s claim that his voluntary
retirement should have been considered by the trial court and his
challenge to the trial court’s award of attorney’s fees. Therefore, we
reverse.

    In November of 2005, after twenty-seven years of marriage, the parties
entered into an amended marital settlement agreement (“MSA”). The MSA
required former husband to pay former wife $5,500 in monthly permanent
periodic alimony. There was no provision in the MSA concerning the
retirement of either spouse.
    In 2015, former husband filed a supplemental petition for downward
modification or termination of alimony. Former husband specifically
alleged, among other things, that he was over the age of sixty-five and
faced retirement in the near future. At trial, he testified that he continued
to work for health insurance reasons due to his current wife’s significant
illness. Former husband also stated that he planned to retire in August
2017, when he reached sixty-eight years of age and both he and his
current wife would be covered by Medicare. He recalled that his retirement
was not contemplated at the time the MSA was entered. Former husband’s
forensic accountant, who participated in drafting the MSA, corroborated
this testimony that was otherwise unrebutted.

   Ultimately, the trial court denied former husband’s petition for
modification. In the order, the court correctly noted the three elements
necessary to permit modification of alimony. See Koski v. Koski, 98 So. 3d
93, 95 (Fla. 4th DCA 2012). However, the court cited Pimm v. Pimm, 601
So. 2d 534 (Fla. 1992), for the purported proposition that “it must be
proved that the change in circumstance was not anticipated by the parties
at the time of the final judgement.” (emphasis added). The court thus
rejected former husband’s argument, noting that former husband’s
income and net worth had substantially increased since 2005, and former
husband would have the same ability to pay if he chose to retire. The order
concluded, “As to the former husband’s potential retirement, such a
contingency was certainly no surprise to either party because of his age.”

    The trial court’s order also found that former wife had a financial need
for the alimony payments she was receiving, and former husband had the
ability to pay. However, the record does not reflect any findings of fact as
to former wife’s continued “need” relating to her request that former
husband pay her attorney’s fees. The trial court addressed the skillfulness
of the attorneys representing both parties, and after referencing Rosen v.
Rosen, 696 So. 2d 697 (Fla. 1997), and the factors to be considered for an
award of attorney’s fees, the order provided that the “continued payment
[of fees] by Mr. Bauchman would appear not to have much of an impact
on his lifestyle.” The order further provided that former wife “does not
have the cash assets to employ an attorney comparable to the firm retained
by the former husband.”

I. Former Husband’s Voluntary Retirement

   The trial court has broad discretion to modify a former spouse’s alimony
obligation “as equity requires, with due regard to the changed
circumstances . . . .” § 61.14(1)(a), Fla. Stat. (2017). However, the
appellate court’s standard of review of an order modifying alimony is

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mixed. See Jarrard v. Jarrard, 157 So. 3d 332, 337 (Fla. 2d DCA 2015).
The trial court’s legal conclusions are reviewed de novo. See id. at 337-
38. The trial court’s factual findings are reviewed for abuse of discretion
and should be affirmed if supported by competent, substantial evidence.
See id. at 337. However, if the facts are undisputed, the judgment is
reviewed de novo. See id. at 337 n.5.

   The difference between an error of law and an abuse of discretion is
two-fold:

      An award of alimony will usually not be reversed on appeal
      absent an abuse of discretion. Canakaris v. Canakaris, 382
      So. 2d 1197 (Fla. 1980); Green v. Green, 228 So. 2d 112 (Fla.
      3d DCA 1969). However, “[w]here a trial judge fails to apply
      the correct legal rule… the action is erroneous as a matter of
      law.” Kennedy v. Kennedy, 622 So. 2d 1033, 1034 (Fla. 5th
      DCA 1993).

Ondrejack v. Ondrejack, 839 So. 2d 867, 870 (Fla. 4th DCA 2003).

   “To warrant modification of alimony, the party seeking the change must
prove ‘1) a substantial change in circumstances; 2) that was not
contemplated at the time of final judgment of dissolution; and 3) is
sufficient, material, involuntary, and permanent in nature.’” Koski, 98 So.
3d at 95 (emphasis added) (quoting Damiano v. Damiano, 855 So. 2d 708,
710 (Fla. 4th DCA 2003)).

    Silence as to retirement within an original judgment or agreement
“should not preclude consideration of a reasonable retirement as part of
the total circumstances in determining if sufficient changed circumstances
exist to warrant a modification of alimony.” Pimm, 601 So. 2d at 537.
“Settlement agreements are to be interpreted in accordance with laws
governing contracts. Thus, absent evidence of the parties’ intent to the
contrary, the unambiguous language of the agreement should be
interpreted according to its plain meaning.” Dogoda v. Dogoda, 233 So. 3d
484, 487-88 (Fla. 2d DCA 2017) (quoting Johnson v. Johnson, 848 So. 2d
1272, 1273 (Fla. 2d DCA 2003)). “Consistent with notions of equity is the
consideration of whether the parties contemplated the substantial change
in circumstances and accounted for such change when they agreed on the
terms of the support award.” Dogoda, 233 So. 3d at 487 (emphasis added).

   “[I]t is well-established that an alimony award may not be modified
because of a ‘change’ in the circumstances of the parties which was
contemplated and considered when the original judgment or agreement

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was entered.” Jaffee v. Jaffee, 394 So. 2d 443, 445 (Fla. 3d DCA 1981).
The reason for this doctrine is that “if the likelihood of a particular
occurrence was one of the factors which the court or the parties considered
in initially fixing the award in question, it would be grossly unfair
subsequently to change the result simply because the anticipated event
has come to pass.” Id.

    Over the years, however, courts have confused “anticipated” and
“foreseeable” circumstances to mean that such circumstances were
“contemplated and considered” at the time the original judgment was
entered. See Gelber v. Brydger, 2018 WL 2715350 at *2 (Fla. 4th DCA
June 6, 2018). “The word choice of ‘anticipated’ has been unfortunate
because it has transformed a very different concept into something that it
is not.” Id.

   In Gelber, the former husband sought a downward modification of
alimony upon the former wife reaching fifty-nine-and-one-half years of age,
thus allowing her to access her retirement accounts without penalty,
which had appreciated significantly. Id. at *1. The trial court’s amended
final judgment found the former husband had demonstrated an
“unanticipated” substantial change in the former wife’s financial
circumstances. Id. On appeal, the former wife argued the event was
“foreseeable” and alimony may not be modified for “anticipated changes in
circumstances.” Id. at *2.

   This court disagreed, holding that the second prong of the analysis
“concerned matters that had been contemplated or considered in the past,
in a judgment or agreement; it does not penalize a party for failing to raise
a matter that had not yet happened.” Id. at *3. Rather, “[i]n its refusal to
reconsider something already ‘contemplated and considered’ by the parties
or the court in a family case, the doctrine described by Jaffee is akin to
the doctrines of res judicata or collateral estoppel.” Id. at *2 (footnotes
omitted).

    Additionally, citing Pimm, this court noted that “the Florida Supreme
Court did not employ an ‘anticipated/foreseeability’ analysis in deciding
that a former spouse’s retirement is a change of circumstances that may
trigger a modification of alimony.” Gelber, 2018 WL at *3. This court
concluded that “[r]etirement is certainly something that can be
‘anticipated’ during a divorce. Yet the Supreme Court [in Pimm] focused
not on what the parties should have anticipated but on what was actually
considered in the property settlement agreement entered 13 years before
the motion for modification.” Id.


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    Here, the trial court employed the “anticipated/foreseeability” analysis
to reason that retirement had been impliedly integrated into the MSA due
to former husband’s age at dissolution, and it cited Pimm to support this
conclusion. But there is no discussion of “anticipated,” “unanticipated,”
or “foreseeable” events in Pimm. Pimm focused on the reasonableness of a
former spouse’s voluntary retirement as a basis for modification and
provided that while including a provision about retirement in an MSA or
final judgement was preferable, it did not preclude a spouse from
petitioning for modification for those reasons. See Pimm, 601 So. 2d at
536-37. Thus, the trial court’s conclusion that the contingency of former
husband’s potential retirement “was certainly no surprise to either party
because of his age” directly conflicts with Pimm.

   We find the trial court erred in failing to consider former husband’s
impending retirement as a substantial change in circumstances, as no
evidence was presented to show the parties considered former husband’s
future retirement when the MSA was entered. We therefore reverse the
final order and remand this matter to the trial court for further proceedings
on this issue.

II. Award of Attorney’s Fees to Former Wife

   An award of attorney’s fees stemming from a dissolution proceeding is
reviewed for abuse of discretion. See Breckstrom v. Breckstrom, 183 So.
3d 1067, 1068 (Fla. 4th DCA 2015).

    A court’s determination of an appropriate attorney’s fee award is
governed by section 61.16(1), Florida Statutes (2017), which requires the
trial court to consider and evaluate each party’s financial resources in
deciding whether, and to what extent, to award attorney’s fees. To
accomplish this goal, the “trial court must look to each spouse’s need for
suit money versus each spouse’s respective ability to pay.” Rosen, 696 So.
2d at 699. The respective financial resources of each party constitute “the
primary factor to be considered.” Id. at 700; accord Jacoby v. Jacoby, 763
So. 2d 410, 417 (Fla. 2d DCA 2000). “The party seeking fees has the
burden of proving the reasonableness and the necessity of the fee sought.”
Addie v. Coale, 120 So. 3d 44, 48 (Fla. 4th DCA 2013).

   “By the vague, general requirement that a court ‘consider the financial
resources of both parties,’ the statute has vested broad discretion in the
courts to develop a body of law shaping the considerations relevant to an
award of Chapter 61 attorney’s fees and costs.” Von Baillou v. Von Baillou,
959 So. 2d 821, 823 (Fla. 4th DCA 2007) (quoting § 61.16(1), Fla. Stat.
(2006)).

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    “[T]he party seeking relief must show some need; it is not enough to
simply show that the adverse party’s ability to pay the fees is greater than
the party seeking relief or that an award is based on the relative financial
strain of paying attorney’s fees.” Carlson v. Carlson, 719 So. 2d 936, 936
(Fla. 4th DCA 1998); accord Zahringer v. Zahringer, 813 So. 2d 181, 182
(Fla. 4th DCA 2002). “‘Need’ is ‘the necessity for some financial assistance
to engage an attorney and pay attorney fees.’” Von Baillou, 959 So. 2d at
823 (quoting Satter v. Satter, 709 So. 2d 617, 618-19 (Fla. 4th DCA 1998)).
“If one party has no financial need for fees, the other party cannot be
compelled to pay them solely because his or her sizeable assets minimize
the financial strain of such a payment.” Id. Moreover, “where the parties
to a dissolution are equally able to pay attorney’s fees, it is an abuse of the
court’s discretion to require one spouse to pay the other’s attorney’s fees.”
Vitalis v. Vitalis, 799 So. 2d 1127, 1133 (Fla. 5th DCA 2001).

   Here, the record shows that former wife had substantially the same
ability to pay her attorney as did former husband. In rendering its
decision, the trial court misconstrued former wife’s “need” regarding
attorney’s fees, implying either that she was financially unable to pay her
attorney’s fees, or that she needed payment from former husband to retain
an attorney of equal caliber to the one he retained. Neither was true. While
former wife was fortunate to have found an attorney of the same caliber as
former husband’s attorney, this factor is not a basis for an award of
attorney’s fees. When considering a party’s financial need for funds to
secure competent legal counsel, neither the statute nor caselaw require
that both parties have legal counsel of equal experience or ability; nor is
an impecunious spouse entitled to retain legal counsel charging fees
comparable to those of the attorney retained by the other spouse. The
purpose of a fee award in a dissolution action is to “ensure that both
parties . . . have similar access to counsel and that neither has an unfair
ability to obtain legal assistance because of the other’s financial
advantage.” Young v. Young, 898 So. 2d 1076, 1077 (Fla. 3d DCA 2005)
(emphases added).

   Because the parties’ financial positions here were equalized through
the original settlement agreement’s award of alimony and equitable
distribution of marital assets, and because former wife possessed
substantial non-marital assets, we conclude that the award of attorney’s
fees to former wife was improper. The record does not indicate that she
had any difficulty securing access to competent legal representation.
Former wife currently receives $66,000 per year in alimony from her
former husband, holds over $600,000 in cash assets and has a net worth
of over $2.6 million. From these facts, there is nothing in the record to

                                      6
suggest that former wife could not afford to pay her own attorney’s fees.
Von Baillou, 959 So. 2d at 824-25. The evidence revealed that she
possessed an ability equal to that of former husband to pay her attorney’s
fees and costs. See Lopez v. Lopez, 780 So. 2d 164, 166 (Fla. 2d DCA
2001). Having the former wife pay her own attorney’s fees would only
impose a limited degree of financial strain insufficient to rise to a level that
satisfies the “need” requirement. See Von Baillou, 959 So. 2d at 825.
Absent any factual findings supporting former wife’s need for attorney’s
fees, we can only conclude that the trial court committed error. Zahringer,
813 So. 2d at 182.

   We reverse the trial court’s order awarding attorney’s fees and costs to
former wife, with directions that the trial court order that the parties pay
their own attorney’s fees and costs.

   Reversed and remanded for further proceedings.

DAMOORGIAN and FORST, JJ., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




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