       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

     MARJORIE GELBER, f/k/a MARJORIE GELBER BRYDGER,
                         Appellant,

                                    v.

                    GORDON CHARLES BRYDGER,
                            Appellee.

                             No. 4D17-295

                             [June 6, 2018]

  Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Timothy L. Bailey, Judge; L.T. Case No.
FMCE 03-012331 (41/93).

    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Fort Lauderdale,
for appellant.

   Barry I. Finkel, Fort Lauderdale and Carin M. Porras of Brydger &
Porras, LLP, Fort Lauderdale, for appellee.

GROSS, J.

    This is a case where the former husband sought a downward
modification of alimony once his former wife reached the age of 59 ½ and
could access retirement accounts without penalty. We hold that a former
spouse’s ability to access substantial retirement accounts without penalty
is one factor which may be considered as part of the total circumstances
in determining if there has been a sufficient change to warrant a downward
modification of alimony, provided that a marital settlement agreement or
final judgment has not already taken the retirement accounts into
consideration in setting alimony.
   After a 27-year marriage, Marjorie Gelber and Gordon Brydger divorced
on August 31, 2004. The final judgment incorporated a marital settlement
agreement (“MSA”) which required the former husband to pay $6,375 per
month in permanent periodic alimony until either party died or the former
wife remarried.
    Under the MSA, as part of equitable distribution, the former wife
received various retirement and annuity accounts (collectively, “retirement
accounts”). Nothing in the MSA required the former wife to invade the
retirement accounts for income. The MSA did not take into consideration
the eventual income that the former wife would receive from the retirement
accounts, without penalty, once she reached retirement age. The MSA
made the alimony obligation “modifiable in accordance with Florida
Statutes.”
   In 2014, the former husband filed a supplemental petition for
modification of alimony. The former husband had not yet retired and had
the ability to pay the alimony required by the MSA. Nevertheless, he
sought modification because the former wife’s retirement accounts had
appreciated and the former wife had reached the age of 59 ½, so she could
take distributions from the accounts without penalty.
    At trial, the former husband focused on the former wife’s financial
circumstances. Through the MSA at the time of dissolution, the former
wife received the $657,327 in retirement accounts as well as over
$500,000 in other investments. Her 2005 monthly income was $3,437
from wages and non-retirement investment accounts. By 2014, the
retirement accounts had appreciated to $1,028,965 and her retirement
accounts and investments totaled $1,600,000 for which the stipulated
return was 3.75%. This yielded a monthly income from investment
accounts and retirement accounts of $5,000 per month. In addition to
income available from investment and retirement accounts, the former
wife had social security disability income of $1,027 per month and pension
benefits of $675 per month. Her monthly need was $7,674.
   In an amended final judgment, the circuit court found that the former
husband demonstrated a substantial change in the former wife’s income
from $3,400 per month in 2004 to $7,100 per month in 2014 upon turning
age 59 ½ when she could access the income from her retirement accounts
without penalty. The court found that the change in available income from
2004 to 2014 was “unanticipated” because “the $5,000 a month generated
from her retirement assets as of 2014 was not and could not be attributed
to her in 2004.”
   The court found that all of the witnesses testified that the former wife’s
income from her retirement accounts was not considered or factored into
the alimony amount when it was fixed in the MSA.
   The court concluded that the former wife’s need for alimony was $1,735
per month and reduced the former husband’s alimony obligation to that
amount, retroactive to the date of the petition.


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   We write to address the former wife’s argument that her ability to access
the retirement accounts without penalty at age 59 ½ was not an
unanticipated change in circumstances. She argues that such a known
event is “foreseeable” and that “[a]limony may not be modified for
anticipated changes in circumstances.”
   As a prerequisite to the modification of an alimony award, the notion of
an “anticipated” change in circumstances has crept into Florida law over
the years. We often see it argued, as in this case, to preclude changes that
were “foreseeable” at the time of the original final judgment. The word
choice of “anticipated” has been unfortunate because it has transformed a
very different concept into something that it is not.
   Concerning modifications of support, maintenance, and alimony
agreements or orders, section 61.14(1)(a), Florida Statutes (2017), is
primarily concerned with equity and fairness. In the part pertinent to this
case, the statute provides:
      When the parties enter into an agreement for payments for . .
      . alimony. . . and the circumstances or the financial ability of
      either party changes . . . either party may apply to the circuit
      court…for an order decreasing or increasing the amount of . .
      . alimony, and the court has jurisdiction to make orders as
      equity requires, with due regard to the changed
      circumstances or the financial ability of the parties . . .
      decreasing, increasing, or confirming the amount of . . .
      alimony provided for in the agreement or order.
The statute refers to changed circumstances and financial ability and
permits the court to enter orders “as equity requires.” The statute makes
no reference to a change being “unanticipated.”
   The term “anticipated change” was injected into Florida law by cases
that used the term synonymously to describe something that had been
“contemplated and considered” when the original judgment or agreement
had been entered. For example, in Jaffee v. Jaffee, the court correctly
stated the principle “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 was entered.”
394 So. 2d 443, 445 (Fla. 3d DCA 1981). Jaffe cogently explained the
reason for this rule:
      The reason for this doctrine is an obvious one: 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

                                    -3-
       the result simply because the anticipated event has come to
       pass.
Id. In 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 1 or collateral
estoppel. 2
    As an opinion subheading to the portion of the case containing this
discussion, the Jaffee court used this: “No Unanticipated Change of
Circumstances.”       The choice of adjective was unfortunate, since
“anticipate” conveys the notion of something that will happen in the
future. 3 The legal principle explored in Jaffee 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. Two of the cases cited in Jaffee have language consistent with
its statement of the rule. See Withers v. Withers, 390 So. 2d 453, 455 (Fla.
2d DCA 1980) (indicating that a substantial change of circumstances is
one “which circumstances must not have been present and contemplated
at the time of the final judgment”); Ashburn v. Ashburn, 350 So. 2d 1158,
1158 (Fla. 2d DCA 1977) (stating that a change of circumstances “is not a
substantial change if it had been contemplated in the final judgment.”). 4
    Some cases have cited to the subheading in Jaffee rather than the rule
it explains. See, e.g., Penland v. Penland, 442 So. 2d 1054, 1055 (Fla. 1st
DCA 1983) (stating that “[a]limony may not be modified for anticipated
changes in circumstances”). This has opened the door for foreseeability


1 “Res judicata is a judicial doctrine used to bar parties from relitigating claims
previously decided by a final adjudication on the merits.” W & W Lumber of Palm
Beach, Inc. v. Town & Country Builders, Inc., 35 So. 3d 79, 82–83 (Fla. 4th DCA
2010).
2 “For the doctrine of collateral estoppel to apply to bar relitigation of an issue,

five elements must be present: ‘(1) an identical issue must have been presented
in the prior proceedings; (2) the issue must have been a critical and necessary
part of the prior determination; (3) there must have been a full and fair
opportunity to litigate that issue; (4) the parties in the two proceedings must be
identical; and (5) the issues must have been actually litigated.’” Criner v. State,
138 So. 3d 557, 558 (Fla. 5th DCA 2014) (quoting Cook v. State, 921 So. 2d 631,
634 (Fla. 2d DCA 2005)).
3 “Anticipate” is commonly defined as “to realize beforehand; foretaste or foresee.”

THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 64 (1967).
4 Of the cases cited in Jaffee, Waller v. Waller employs a foreseeability concept in

holding a change of circumstances to be insufficient for modification because the
change was “one which can reasonably be said to have been anticipated.” 212
So. 2d 352, 353 (Fla. 3d DCA 1968).

                                       -4-
arguments in modification proceedings, untethered from the underlying
legal principle.
    In Pimm v. Pimm, 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. 601 So. 2d 534 (Fla. 1992). Citing to Withers, the court restated
the Jaffee rule that a substantial change of circumstances sufficient to
justify a modification must be a “change . . . not contemplated at the time
of final judgment of dissolution.” Id. at 536. The court expressly held that
the failure of an MSA or final judgment to consider what would happen
upon a spouse’s retirement “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.” Id. at 537. Retirement is certainly something that can be
“anticipated” during a divorce. Yet the Supreme Court 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.
    Like the situation in Pimm, the MSA in this case was silent as to what
would happen once the former wife reached an age where she could access
the funds in retirement accounts without penalty. This was not a case
where the retirement accounts had been taken into consideration to
determine the former wife’s current income in a final judgment or MSA.
Compare, Niederman v. Niederman, 60 So. 3d 544 (Fla. 4th DCA 2011). 5
The MSA made alimony “modifiable in accordance with Florida Statutes”
and section 61.14(1)(a) makes alimony modifiable “as equity requires”
where circumstances have changed. Finding no abuse of discretion, we
affirm the trial court’s order granting modification, including the issues
raised on the cross-appeal.

WARNER and TAYLOR, JJ., concur.

                              *         *          *

    Not final until disposition of timely filed motion for rehearing.

5 We distinguish Kreiser v. Kreiser, 505 So. 2d 40 (Fla. 4th DCA 1987), relied
upon by the former wife. There, this court rejected a former husband’s attempt
to eliminate his alimony obligation. Few facts are set forth in the opinion, but it
appears that we found that the “unwritten agreement” “recited into the record”
contemplated that the wife would receive corporate stock which would provide
the wife with additional assets and income. Id. at 41. Read in this way, Kreiser
is consistent with Pimm and the rule elaborated upon in Jaffee.

                                       -5-
