JOHN DAVID HOLLINGER, APPELLANT,
v.
JOAN BAUR, A/K/A JOAN HOLLINGER, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Former husband appeals a temporary modification of his rehabilitative alimony obligation, challenging the trial court's consideration of 401(K) earnings in calculating his ability to pay. The appellate court reverses in part, holding that earnings from the equitably distributed marital portion of the 401(K) cannot be used to calculate alimony ability to pay, consistent with Diffenderfer v. Diffenderfer.
The trial court erred by considering the marital portion of the 401(K) in calculating alimony ability to pay. While the nonmarital portion of the 401(K) may properly be considered, the marital portion that was equitably distributed cannot be used for this purpose, and the court must also account for tax penalties on premature withdrawals.
[1] A trial court errs in considering earnings from the equitably distributed portion of a retirement account when determining a party's ability to pay alimony.
[2] A trial court may consider the nonmarital portion of a retirement account in determining a party's ability to pay alimony.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the former husband contests the trial court's consideration of his 401(K) in determining his ability to pay alimony. In Diffenderfer, the Court expressly disapproved of the use of retirement benefits for alimony purposes where the same benefits were also subject to equitable distribution.”
Establishes the governing legal principle from Diffenderfer that retirement benefits cannot serve dual purposes in alimony and distribution analysis
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe parties were married from 1983 to 1995. Upon dissolution, the trial court determined that a portion of the former husband's 401(K) was marital pro…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Nonmarital Assets cases and more on FLexlaw
PER CURIAM.
John David Hollinger (the “former husband”), appeals an order temporarily modifying his rehabilitative alimony obligation to appellee, Joan Baur (the “former wife”). We reverse in part and remand because the trial court erred in considering earnings from the equitably distributed portion of the former husband’s 401(K) in determining his ability to pay alimony.
The parties were married from 1983 to 1995. Upon dissolution, the trial court ascertained that a portion of the former husband’s 401(K) retirement plan was marital property, subject to equitable distribution, and that another, larger, portion was nonmarital property. The trial court equitably distributed the marital portion and ordered the former husband to pay rehabilitative alimony in the amount of $4,700 per month for four years, followed by $2,100 per month in permanent alimony.
Shortly thereafter, the former husband sought a reduction in his rehabilitative alimony obligation citing the loss of two primary sources of income. The trial court entered a temporary modification order concluding that the former husband would not be unemployed for long. In the meantime, the court determined that the forme1* husband was capable of paying $750.00 per month in rehabilitative alimony based, for the most part, on the $3,652.87 that his 401(K) account earns each month.
Citing the Florida Supreme Court’s decision in Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla.1986), the former husband contests the trial court’s consideration of his 401 (K) in determining his ability to pay alimony. In Diffenderfer, the Court expressly disapproved of the use of retirement benefits for alimony purposes where the same benefits were also subject to equitable distribution. Diffenderfer, 491 So. 2d at 267. Here, however, only a portion of the former husband’s 401(K) account was equitably distributed; most of the account consisted of nonmarital assets that were retained by the former husband at dissolution.
Thus, while the trial court properly considered the nonmarital portion of the former husband’s 401(K) in determining his ability to pay rehabilitative alimony, the court’s failure to subtract the marital portion from his total monthly earnings constituted error. See Diffenderfer, 491 So. 2d at 267; Paris v. Paris, 707 So. 2d 889 (Fla. 5th DCA 1998); Bain v. Bain, 687 So. 2d 79 (Fla. 5th DCA 1997); Rogers v. Rogers, 622 So. 2d 96 (Fla. 2d DCA 1993). Accordingly, we reverse in part and remand with directions to the trial court to recalculate the former husband’s ability to pay without considering the marital portion of his 401(K).
See Diffenderfer, 491 So. 2d at 267; Paris, 707 So. 2d at 890; Bain, 687 So. 2d at 81; Rogers, 622 So. 2d at 98. In doing so, we also remind the trial court that it must account for any tax penalty that the husband will incur in making premature withdrawals on his 401(K).
See Gentile v. Gentile, 565 So. 2d 820 (Fla. 4th DCA 1990).
In all other respects, the judgment below is affirmed.
Affirmed in part; reversed in part and remanded with instructions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Acker v. Acker, 904 So. 2d 384 (Fla. 2005)…of Diffenderfer, a court is in fact permitted to consider a pension which has been equitably distributed to the payor in determining the payor’s ability to pay alimony. In so holding, the court receded from its prior decisions in Hollinger v. Baur, 719 So. 2d 954 (Fla. 3d DCA 1998), and Waldman v. Waldman, 520 So. 2d 87 (Fla. 3d DCA 1988). The second portion of the Third District’s opinion went on to note, however, that the foregoing discussion of Diffender-fer is rendered academic because the Legislature s…
-
Acker v. Acker, 821 So. 2d 1088 (Fla. 3d DCA 2002)…then referred the case to the court for en banc consideration. The en banc court directed the parties to address, among other things, whether the court should recede in whole or in part from two cases which interpret Diffenderfer: Hollinger v. Baur, 719 So. 2d 954 (Fla. 3d DCA 1998), and Waldman v. Waldman, 520 So. 2d 87 (Fla. 3d DCA 1988). II. We first consider how the issue should be analyzed under Dijfenderfer. As will be explained below, some of the difficulty in analyzing the issue stems from the fact…1 / 3
Authorities Cited
- Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla. 1986)
- Gentile v. Gentile, 565 So. 2d 820 (Fla. 4th DCA 1990)
- Rogers v. Rogers, 622 So. 2d 96 (Fla. 2d DCA 1993)
- Paris v. Paris, 707 So. 2d 889 (Fla. 5th DCA 1998)
- Hayes v. State, 687 So. 2d 79 (Fla. 4th DCA 1997)
- Addison L. Bain v. Ingeborg K. Bain, 687 So. 2d 79 (Fla. 5th DCA 1997)