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 1⁄2 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.
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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 1⁄2, 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 1⁄2 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 1⁄2 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 
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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 judicata1 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).
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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.