DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

PHILLIP RODOLPH, SR.,

Appellant,

v.

BETTY A. RODOLPH,

Appellee.

Nos. 4D18-3167 and 4D20-253

[May 4, 2022]

Appeals from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Lester Langer, Senior Judge, and Nickolaus Hunter 

Davis, Judge; L.T. Case No. FMCE 08-009536 (40/91).

Hal Vogel of the Vogel Law Firm, Davie, for appellant.

Tracy Belinda Newmark and Natalie Suzanne Kay of Kelley Kronenberg, 

Fort Lauderdale, for appellee.

DAMOORGIAN, J.

This matter involves two appeals with the same parties and underlying 

facts. We have therefore sua sponte consolidated the appeals for opinion 

purposes. 

In case no. 4D18-3167, Phillip Rodolph, Sr. (“Former Husband”) 

appeals the trial court’s final judgment denying his petition to modify or 

terminate permanent alimony (“Final Judgment”), wherein he was ordered 

to continue paying permanent alimony in the amount of $1,700 a month

to Betty Rodolph (“Former Wife”). In the Final Judgment, the trial court 

also found Former Wife was entitled to attorney’s fees incurred during the 

modification proceedings.1 On appeal, Former Husband argues the trial 

court erred in: (1) denying his petition to modify or terminate alimony; 

(2) granting Former Wife’s motion to preclude his expert forensic 

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1 In the Final Judgment, Former Husband was also ordered to pay $23,600 in 

alimony arrearages for the period of January 1, 2017, through June 30, 2018.

That award of alimony arrearages was stipulated by the parties and is not at 

issue on appeal.
2

accountant from testifying at trial; and (3) finding entitlement to attorney’s 

fees. We affirm on issue two without further comment. For the reasons 

explained below, we reverse on issue one and dismiss on issue three.

In case no. 4D20-253, Former Husband appeals two post-judgment 

orders: (1) “Order on Petitioner/Former Wife’s Motion for Temporary 

Appellate Attorneys Fees and Costs” and (2) “Order on Petitioner/Former 

Wife’s 3rd Motion for Contempt, Enforcement and Other Relief” 

(collectively “post-judgment orders”). The post-judgment orders required 

Former Husband to pay Former Wife $19,000 in temporary appellate 

attorney’s fees for the appeal of the Final Judgment, $23,800 in accrued 

alimony arrearages through November 2019, and $20,497.50 in attorney’s 

fees relating to the post-judgment contempt and enforcement proceedings. 

In light of our holding on the modification issue, the post-judgment orders 

must be reversed.

Background

In 2009, Former Husband and Former Wife divorced after thirty-three 

years of marriage. At the time, Former Husband was a twenty-four-year 

veteran with the Broward County Sheriff’s Office as a corrections officer. 

In the dissolution judgment, Former Wife was awarded permanent alimony 

in the amount of $1,700 per month, as well as a portion of Former 

Husband’s retirement funds to be distributed when he “actually retired by 

means of a QDRO.” At the time the dissolution judgment was entered, 

Former Wife’s share of Former Husband’s retirement fund was worth 

$236,500. When Former Husband retired several years later, the value of 

Former Wife’s share of the retirement funds had increased to $352,283.08.

In 2016, Former Husband filed a petition to modify or terminate 

alimony (“Modification Petition”). The Modification Petition alleged Former 

Husband no longer had the ability to pay alimony because he was

involuntarily unemployed due to a heart condition, back and neck 

problems, and carpal tunnel in his arm and wrist. It also alleged that 

Former Wife no longer had a need for alimony because she had since 

received her share of Former Husband’s retirement funds, was receiving 

monthly income due to her own disability, and her monthly expenses were 

reduced by virtue of her living with her daughter.

While the Modification Petition was pending, Former Wife filed her first

motion for contempt and enforcement arguing Former Husband had 

ceased paying her alimony. After a hearing on the motion, the trial court 

ordered Former Husband to pay $1,000 that day, and $1,000 each month 

as temporary partial alimony payments to Former Wife. 
3

At trial on the Modification Petition, Former Husband testified he 

received $1,970 a month in social security benefits but was earning no 

income. He also testified that he remarried in 2010 and currently lived

with his new wife and her minor son and adult daughter. In 2017, the 

new wife stopped working in order to take care of Former Husband. That 

same year, Former Husband also purchased a house and incurred various 

expenses relating to the house. Former Husband’s amended financial 

affidavit, which was admitted into evidence, reflected $7,634 in total 

monthly expenses and included expenses relating to the new wife and her 

children. Former Husband testified that in order to meet his monthly 

expenses, he had to withdraw a minimum of approximately $3,500 per 

month from his retirement account.

Former Wife, in turn, testified she received $352,283 as her share of 

Former Husband’s retirement assets in December 2015. Former Wife used 

a portion of the money to purchase a new car and an annuity and to pay 

certain bills, and put the remainder of the money in an IRA investment 

account. As of the time of trial, Former Wife’s annuity and IRA investment 

account reflected a balance of $237,905.99. Regarding her monthly 

income, Former Wife testified she received $515.10 in social security 

disability benefits and $1,440 from the annuity she purchased, for a 

monthly total of $1,955.10. Former Wife’s amended financial affidavit, 

which was admitted into evidence, reflected $3,584.62 in total monthly 

expenses and included monthly donations to “religious organizations” in 

the amount of $231. The amended financial affidavit also included 

recurring monthly expenses for rent ($291), home repairs and 

maintenance ($60), association fees ($102), water, garbage and sewer 

($42), home insurance ($161), cable ($75), pest control ($97), and alarm 

services ($40). At trial, Former Wife conceded that many of the household 

expenses listed in the amended financial affidavit were incorrect. 

For example, Former Wife testified the daughter, with whom she resided, 

paid the monthly cable and alarm bills; the repair and maintenance 

expense was not recurring; and she paid for the home insurance only once.

Regarding the issue of attorney’s fees, Former Wife testified that she 

incurred $6,227.50 in fees and recently received a bill from her attorney 

in the amount of $1,860 for a total of $8,087.50. Former Wife also testified 

that she had a need for attorney’s fees. Ultimately, the trial court stated 

it would “decide the issue on entitlement” only and would reserve on the 

amount of fees.
4

The trial court made no findings at the conclusion of the trial. 

Two months later, the trial court entered the Final Judgment denying 

Former Husband’s Modification Petition. In so doing, the trial court 

reasoned as follows:

Based upon the evidence and testimony presented, the Court 

finds that the Former Wife does not have a greater ability to 

support herself, as claimed by the Former Husband, as she 

receives the minimal net monthly amount of $515.10 from 

Social Security Disability, after the deduction for her health 

insurance and parent/student loan, the net monthly amount 

of $1,440.00 from her annuity, inconsistent payments of 

$75.00 from babysitting her grandchild, and she resides with 

her daughter, offering rent/household payments to her 

daughter when financially able. She also tithes to her church 

equal to about 10% of her income. Even with the receipt of 

permanent alimony as ordered ($1,700.00 per month) from 

the Former Husband, the Former Wife’s needs are still not 

being met. Notwithstanding the [F]ormer Husband[’]s 

retirement (which the court has considered as a factor 

pursuant to Gelber v. Brydger, [248 So. 3d 1170 (Fla. 4th DCA 

2018)]), based upon the evidence and testimony presented to 

this Court, the Court finds that Former Husband continues to 

have the ability to fully provide for himself, and to continue to 

pay the permanent periodic alimony to the Former Wife as 

previously ordered. The Former Husband receives $1,970.00 

monthly from Social Security retirement benefits, and 

withdraws a minimum of $3,500.00 gross each month from 

his retirement funds invested with Primerica. . . . . Further, 

the Former Husband voluntarily supports his subsequent 

spouse and her minor child, including her college aged 

daughter to whom he has no legal obligation. The voluntary

financial support he provides to such individuals includes, 

but is not limited to, family health insurance in the monthly 

sum of $860.00, housing, food, household supplies, car 

payment and car insurance.

Although the trial court generally concluded Former Wife’s “needs were not 

being met,” it made no specific factual findings regarding Former Wife’s 

current expenses or needs and made no reference to the factors in section 

61.08, Florida Statutes (2018). Moreover, although the trial court found 

that Former Husband’s retirement was “justified,” it made no specific 

findings as to whether his retirement constituted a substantial and 

unanticipated change in circumstances.
5

In the findings portion of the Final Judgment, the trial court also found:

Former Wife has incurred a total of $23,600.00 in attorneys’ 

fees and costs in these post-judgment modification 

proceedings. The Former Wife has the need for her attorneys’ 

fees and costs to be paid by the Former Husband. The Former 

Husband, based upon his relative and overall superior 

financial circumstances, has the ability to pay these fees and 

costs.

In the decretal portion of the Final Judgment, however, the trial court 

stated:

The Former Wife’s request for attorney’s fees and costs in this 

post-judgment modification action is GRANTED as to 

entitlement. The amount of these reasonable fees and costs 

is reserved for further hearing upon notice to all parties, if the 

parties are unable to agree to this amount.

The record does not reflect that the parties stipulated to an amount of fees

or that the matter ever proceeded to a fee hearing. Former Husband filed 

a motion for rehearing, which was denied. The appeal in case no. 

4D18-3167 then followed.

Shortly thereafter, Former Wife filed a motion for temporary fees in the 

trial court, arguing she had to defend Former Husband’s appeal in case 

no. 4D18-3167 and that “the Former Husband has the superior financial 

ability to pay” and “Former Wife has the need for payment of those fees.” 

Former Wife also filed a third motion for contempt, enforcement, and other 

relief after Former Husband failed to pay his monthly alimony and alimony 

arrearages obligations.2 In the motion, Former Wife also requested Former 

Husband pay for her attorney’s fees and costs relating to “bringing this 

motion”. The trial court ultimately granted both motions and awarded

Former Wife $19,000 in temporary appellate attorney’s fees to defend 

Former Husband’s appeal of the Final Judgment, $23,800 in alimony 

arrearages through November 2019, and $20,497.50 in attorney’s fees and 

costs relating to the second and third contempt proceedings. The appeal 

in case no. 4D20-253 then followed.

————————————————————————————————————

2 The trial court had previously entered a second contempt order establishing 

unpaid alimony arrearages of $40,600 and ordering Former Husband to pay a 

purge amount of $23,600 to Former Wife.
6

Analysis

Modification Petition 

We begin our analysis by addressing the denial of Former Husband’s 

Modification Petition. “To warrant a 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 v. Koski, 98 So. 3d 93, 95 (Fla. 4th DCA 2012) (citation and internal 

quotation marks omitted). “Once a party moving for alimony modification 

provides substantial, permanent, and unanticipated change in 

circumstances, ‘a trial court must consider and make specific factual 

findings for each of [the] factors [within section 61.08(2)].’” Suarez v. 

Suarez, 284 So. 3d 1083, 1087 (Fla. 4th DCA 2019) (alteration in original) 

(quoting Addie v. Coale, 179 So. 3d 534, 536 (Fla. 4th DCA 2015)); see also 

Donoff v. Donoff, 940 So. 2d 1221, 1223 (Fla. 4th DCA 2006) (holding that 

“all applicable section 61.08(2) factors must be considered in modification 

proceedings under section 61.14”). Notably, section 61.08(2) requires, 

among other things, that a court consider “[t]he financial resources of each 

party” and “[a]ll sources of income available to either party, including 

income available to either party through investments of any asset held by 

that party.” § 61.08(2)(d), (i), Fla. Stat. (2018).

In the present case, the Final Judgment is unclear as to whether the 

trial court found Former Husband met his burden regarding a substantial 

change in circumstances. Although the trial court found that Former 

Husband’s retirement was “justified,” it made no specific finding as to 

whether his retirement constituted a substantial change in circumstances. 

See Koski, 98 So. 3d at 95 (unclear from the final order, wherein the trial 

court found that “former wife has experienced a substantial increase in 

her earnings,” whether “the trial court found that the former husband had 

met his burden with regard to a substantial change in circumstances”).

To the extent the trial court did conclude Former Husband met his burden, 

the trial court was then required to make specific factual findings 

regarding the relevant factors in section 61.08(2), Florida Statutes (2018). 

The findings in the Final Judgment, however, are sparse and conclusory 

at best, especially regarding Former Wife’s needs and sources of income. 

Aside from referencing Former Wife’s monthly income and generally 

concluding that her “needs were not being met,” the trial court made no 

specific factual findings regarding the expenses listed in Former Wife’s 

amended financial affidavit, many of which were disputed by Former 

Husband at trial. Furthermore, although the trial court noted Former 

Wife’s investment account reflected a balance of $237,905.99, it failed to 
7

consider whether there was income available to Former Wife from that

asset without depleting it, such as income from interest. See Klokow v. 

Klokow, 323 So. 3d 817, 824 (Fla. 5th DCA 2021) (finding reversible error 

in trial court’s failure to consider the interest income and dividends from 

investment accounts when determining need for alimony).

In addition to not making the required findings, the trial court further 

erred in treating Former Husband’s discretionary withdrawals from his 

retirement account as income for purpose of determining ability to pay. 

It is well established that discretionary withdrawals from a retirement 

account cannot be treated as income for purposes of a party’s ability to 

pay alimony. See, e.g., Kitchens v. Kitchens, 4 So. 3d 1, 2 (Fla. 4th DCA 

2009). In Kitchens, we held that the trial court erred by treating the former 

husband’s discretionary IRA withdrawals as income for purposes of 

calculating alimony, reasoning:

Our decision is premised upon the differences between a 

defined-benefit pension plan and an IRA. The typical definedbenefit pension plan provides a fixed monthly payment and 

prohibits the beneficiary from invading the principal or 

varying the amount of the monthly payment. By contrast, an 

IRA’s principal is available for immediate withdrawal and the 

amounts taken may vary. Moreover, treating discretionary 

IRA withdrawals as income for purposes of calculating 

alimony forces the owner to deplete the account at a faster 

rate and deprives the owner of the full use of an asset which, 

presumably, was subject to equitable distribution at the time 

of the divorce. Cf. Byers v. Byers, 910 So. 2d 336, 342 

(Fla. 4th DCA 2005) (holding that a spouse should not be 

required to liquidate her assets to pay for her support).

Id. In comparing discretionary withdrawals to mandatory withdrawals, we 

held that “mandatory or minimum IRA withdrawals are properly treated 

as income for purposes of calculating alimony,” reasoning that “these 

withdrawals resemble payments under a defined-benefit pension plan 

because they are mandatory and the amounts are calculated by applying 

a set formula.” Id. at 3.

Here, Former Wife presented no evidence that Former Husband’s 

retirement account was subject to a mandatory or minimum IRA 

withdrawal. Therefore, the trial court erred in treating Former Husband’s 

discretionary withdrawals as income. At most, the trial court could have 

imputed income to Former Husband from interest earned on the 

retirement account. See Sikora v. Sikora, 173 So. 3d 1028, 1032 (Fla. 2d 
8

DCA 2015) (“Trial courts may impute income from interest earned on 

retirement accounts if the income is readily available to a spouse without 

penalty and without the need to reduce the principal.”); see also Regan v. 

Regan, 217 So. 3d 91, 94 (Fla. 4th DCA 2017) (reiterating that although a 

court can consider withdrawals from retirement accounts when 

considering a spouse’s income potential, “such withdrawals would not be 

appropriate where they required withdrawal from principal”). The trial 

court, however, failed to make any findings as to whether interest income 

was available to Former Husband from the retirement account.

The trial court’s failure to make specific factual findings regarding 

Former Wife’s current needs and financial resources, coupled with its 

treatment of Former Husband’s discretionary withdrawals from his 

retirement account as income, makes it impossible for this Court to 

meaningfully review the Final Judgment and constitutes reversible error. 

See Winder v. Winder, 152 So. 3d 836, 841 (Fla. 1st DCA 2014) (the lack 

of sufficient factual findings regarding the former wife’s financial resources 

and current living expenses as required by section 61.08 precluded 

meaningful review of the alimony award); Matajek v. Skowronska, 927 So. 

2d 981, 987 (Fla. 5th DCA 2006) (the trial court’s failure to consider the 

factors in section 61.08 “frustrates meaningful review of the trial court’s 

award of alimony and constitutes reversible error”); Beck v. Beck, 852 So. 

2d 934, 937 (Fla. 2d DCA 2003) (“The trial court’s failure to make a finding 

as to the Wife’s actual need requires reversal for reconsideration of the 

alimony award.”).

Attorney’s Fees Relating to the Modification Petition

Former Husband next argues the trial court erred in “awarding” Former 

Wife $23,600 in attorney’s fees and costs in the modification proceeding

for various reasons. We dismiss without prejudice Former Husband’s 

challenge to the portion of the Final Judgment regarding Former Wife’s 

entitlement to fees as not yet ripe. Although the trial court found in the 

findings portion of the Final Judgment that Former Wife had incurred

$23,600 in attorney’s fees, in the decretal portion of the Final Judgment 

the trial court granted Former Wife’s request for fees only “as to 

entitlement” and “reserved” on the amount. Thus, the trial court did not 

actually award an amount of attorney’s fees in this case. “An order merely 

finding entitlement to attorney’s fees is a non-final, non-appealable order.” 

Schmidt v. Schmidt, 319 So. 3d 65, 65 (Fla. 4th DCA 2021); see also Revier 

v. Revier, 45 So. 3d 570, 571 (Fla. 4th DCA 2010) (“We dismiss [the] aspect 

of the final judgment as it relates to the award of attorney’s fees since the 

trial court determined only entitlement and reserved the determination of 

amount for a future day.”).
9

Notwithstanding our dismissal, we note that to the extent the trial court 

did intend to award an amount of attorney’s fees, the Final Judgment is 

deficient in several respects. First, as Former Wife concedes, the $23,600 

figure listed in the Final Judgment is not supported by the record evidence. 

At most, the evidence at the modification trial reflected Former Wife 

incurred approximately $8,000 in attorney’s fees. Second, the trial court 

failed to make sufficient findings regarding need and ability to pay and 

appears to have erroneously awarded fees based solely on Former 

Husband’s relative and overall superior financial circumstances. See Von 

Baillou v. Von Baillou, 959 So. 2d 821, 823 (Fla. 4th DCA 2007) (“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.”); Zahringer v. Zahringer, 813 So. 2d 181, 182 

(Fla. 4th DCA 2002) (“It is not enough for a party to demonstrate the 

adverse party’s ability to pay; the party seeking payment of fees must also 

show a need.”). Third, the trial court did not make the requisite findings 

as to the reasonableness of the fees requested, including the 

reasonableness of Former Wife’s attorney’s time and hourly rate.

See Powell v. Powell, 55 So. 3d 708, 709 (Fla. 4th DCA 2011) (“The law is 

well established that the trial court must set forth specific findings 

concerning the hourly rate, the number of hours reasonably expended and 

the appropriateness of reduction or enhancement factors.”); Ard v. Ard, 

765 So. 2d 106, 107 (Fla. 1st DCA 2000) (even when there is substantial 

competent evidence in the record to support an award of attorney’s fees, 

the fee award will be reversed if the trial court fails to make the required 

factual findings concerning the hourly rate and the number of hours 

reasonably expended).

Post-Judgment Orders

Turning to the post-judgment orders, because we reverse the Final

Judgment, we also reverse the post-judgment orders. See, e.g., Mederi 

Caretenders Visiting Servs. of Se. Fla., LLC v. White, 179 So. 3d 564, 564 

(Fla. 4th DCA 2015) (“Because we are reversing the main appeal, we also 

reverse the order awarding attorney’s fees.”); River Bridge Corp. v. Am.

Somax Ventures, 76 So. 3d 986, 989 (Fla. 4th DCA 2011) (where a fee 

award was based upon the earlier final judgment which was substantially 

reversed, under Rule 1.540(b)(5), the attorney’s fees judgment should 

generally also be reversed for further proceedings). This includes reversal 

of the post-judgment order awarding alimony arrearages which will 

necessarily be impacted by our reversal of the Final Judgment.
10

Also worth noting is that the post-judgment orders awarding Former 

Wife attorney’s fees failed to contain any factual findings as to need and 

ability to pay. See Baime v. Baime, 850 So. 2d 606, 606 (Fla. 4th DCA 

2003) (“The trial court is required to make findings regarding the parties’ 

respective financial needs and abilities to pay. Failure to do so requires 

reversal.” (internal citation omitted)).

Conclusion

With respect to case no. 4D18-3167, we reverse the portion of the Final 

Judgment denying Former Husband’s request to modify or terminate 

alimony, and dismiss without prejudice Former Husband’s challenge to

the portion of the Final Judgment concerning attorney’s fees. We remand

with instructions that the trial court conduct a new evidentiary hearing on

Former Husband’s Modification Petition and prepare an order that 

includes the required factual findings as set forth above.

With respect to case no. 4D20-253, we reverse the post-judgment 

orders, and, pending the trial court’s modification and/or termination of 

the alimony award, direct the trial court to recalculate any alimony 

arrearages owed to Former Wife and reconsider entitlement to attorney’s 

fees after making specific findings regarding the parties’ need and ability 

to pay.

Reversed in part, dismissed in part, and remanded with instructions.

FORST and ARTAU, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.