Niederman v. Niederman
2011 Fla. App. LEXIS 6324
| Fla. Dist. Ct. App. | 2011Background
- Husband is a high-earning cardiac interventionist; wife has not worked full time since 1987 and earned about $35,000 annually part time.
- Dissolution awarded approximately $7.1 million total, with each spouse receiving about 3.5 million; wife received $2.76 million in IRAs/annuities and $729k in non-retirement assets.
- Trial court found wife entitled to permanent periodic alimony, determining her net monthly need of $15,000 and her own income of about $2,500, creating a shortfall of $12,500.
- Court imputed $9,000 monthly from the wife’s IRAs/annuities based on a 72(t) early-withdrawal plan and required husband to pay a portion of withdrawal fees/costs up to $7,500 per month.
- 72(t) plan would permit substantially equal payments for at least five years, thereafter allowing penalty-free access at age 59 1/2.
- The wife challenged the imputation of IRA/annuity income; the court affirmed imputing income, concluding 72(t) withdrawals are available income for alimony purposes if principal is not invaded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 72(t) IRA withdrawals can be imputed as income for alimony. | Niederman contends IRA income is not available income before 59 1/2. | Niederman argues 72(t) withdrawals are available and should be considered income. | Yes; 72(t) withdrawals can be imputed as income if principal is not invaded. |
| Whether using 72(t) plan assumptions to impute income complies with alimony statutes. | Income from IRAs should not be counted as available income prior to penalties-free status. | Courts may consider all income sources including investments and retirement accounts as available. | Yes; the court may impute such income consistent with statutory factors. |
| Whether the evidence supports imputing a 5% rate of return on IRA/annuity assets. | Rate may be speculative given economic downturn; assumption was unsupported. | Experts testified 5% is reasonable; 9% historically; 5% is conservative. | Yes; competent substantial evidence supports a 5% rate as reasonable. |
| Whether Castaldi, Kitchens, and related cases limit consideration of IRA income for alimony. | Castaldi precludes considering IRA income; Kitchens limits discretionary IRA withdrawals in child support context. | Distinguishable; this case concerns alimony and principal is not invaded; income can be imputed. | No; distinction supports imputing IRA income in alimony context. |
| Whether the court erred by not requiring the wife to exhaust principal before imputing income. | Imputation could deplete principal or penalize savings. | Imputation does not invade principal and serves equitable purpose; savings component is avoided by rate choice. | No; imputation was proper and did not invade principal; savings component was avoided. |
Key Cases Cited
- Donoff v. Donoff, 940 So.2d 1221 (Fla. 4th DCA 2006) (IRA income may be considered available for alimony purposes)
- Mallard v. Mallard, 771 So.2d 1138 (Fla.2000) (alimony may not include a savings component)
- Rosecan v. Springer, 985 So.2d 607 (Fla. 4th DCA 2008) (imputing reasonable rate of return on under-earning assets supported)
- Castaldi v. Castaldi, 968 So.2d 713 (Fla. 2d DCA 2007) (distinguishable from retirement assets treated in this case)
- Kitchens v. Kitchens, 4 So.3d 1 (Fla. 4th DCA 2009) (discretionary IRA withdrawals post-retirement are not income for child support; distinguishable)
- Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla. 1986) (pension benefits can be assets or income but not both)
- Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) (trial court discretion in alimony decisions)