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Date: 01-12-2020

Case Style:


Case Number: 5D18-2701



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Defendant's Attorney:


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Emory Nelson Sumlin, the former husband, appeals the trial courtís final judgment
of dissolution of marriage. We affirm the trial courtís order striking the former husbandís
answer and counterpetition without further discussion. See Ries v. Ries, 984 So. 2d 612
(Fla. 4th DCA 2008) (holding that trial court could prevent husband from presenting
evidence regarding equitable distribution, alimony, and attorney fees where husband did
not file financial affidavit, and failed to respond to discovery). We also affirm the
dissolution of the partiesí marriage, but reverse the plan of equitable distribution and
remand for the trial court to consider the tax consequences of the former husbandís
retirement account and to account for the full marital portion of the former wifeís 401(k)
The parties were married in December 2001 and had no children together. After
the former wife filed the petition for dissolution of marriage, the trial court conducted a trial
at which the former wife introduced numerous documents concerning the partiesí
finances, including bank, brokerage, and retirement account statements. The former wife
also testified as to the marital and nonmarital assets and liabilities. In addition, the former
wife presented an accounting expert to testify as to the value of certain accounts and
assets, including the former husbandís business, and submitted into evidence an
equitable distribution worksheet, which proposed an equitable distribution scheme that
resulted in an equalizing payment to the former wife. The trial court subsequently entered
a final judgment that adopted the accountantís valuations. The court also set forth the
equitable distribution scheme proposed by the former wife, and ordered the equalizing
payment to be secured by a piece of property distributed to the former husband, which
was the former husbandís primary residence during the dissolution proceedings. The
former husband contends that there are errors in the equitable distribution plan that
should be corrected. We agree and remand for further proceedings.
The former husband argues that the trial court erred when it considered the tax
consequences applicable to the former wifeís pension and 401(k) account, assets that
she received as part of equitable distribution, but failed to similarly consider the tax
consequences related to the former husbandís Merrill Lynch retirement account, which
he received as part of equitable distribution. The former husband is correct.
ďConsideration of the consequences of income tax laws on the distribution of
marital assets . . . is required and failure to do so is ordinarily reversible error.Ē Miller v.
Miller, 625 So. 2d 1320, 1321 (Fla. 5th DCA 1993); see Diaz v. Diaz, 970 So. 2d 429, 432
(Fla. 4th DCA 2007) (determining that trial court erred in failing to consider tax
consequences to former husbandís pension and DROP account when dividing partiesí
assets). The purpose of considering tax consequences is to ensure that one party is not
ďcharged with the full value of an asset that is burdened with an inevitable payment of
taxes.Ē Vaccaro v. Vaccaro, 677 So. 2d 918, 922 (Fla. 5th DCA 1996). The trial court
should consider the effect of the burden so that neither party gains an unfair advantage
or suffers an unfair burden because he or she receives a particular asset in distribution.
Id. Accordingly, we reverse for the trial court to consider the tax consequences of the
Merrill Lynch retirement account to the former husband, taking evidence if necessary.
See Kvinta v. Kvinta, 277 So. 3d 1070, 1073 (Fla. 5th DCA 2019) (reversing and
remanding for consideration of consequences of income tax laws on distribution of former
husbandís pension).
Likewise, the former husband correctly argues that the equitable distribution
worksheet contains an error regarding the former wifeís withdrawal of a portion of her
401(k) account. The former wife testified that she withdrew $133,945.07 from her 401(k)
in 2015 to make a down payment on her non-marital residence and to pay the penalties
and taxes associated with the early withdrawal. The amount withdrawn was 53.60%
marital, equaling $57,459.20 after applying a 20% tax rate.1 However, the equitable
distribution worksheet credited the former wife with only $28,730. Because the former
wife testified that she utilized the full marital portion for her own use, the entire $57,459
marital value of the 401(k) withdrawal should have been allocated to the former wife.
Accord Marshall-Beasley v. Beasley, 77 So. 3d 751, 759 (Fla. 4th DCA 2011) (finding that
in equitable distribution, former wife properly received $351,112 credit for net amount of
former husbandís withdrawal from 401(k) account to purchase property because 401(k)
account necessarily was going to be taxed).

Outcome: Accordingly, we reverse the portions of the final judgment relating to the equitable
distribution of the partiesí marital assets and liabilities, and remand for a recalculation of
the equitable distribution award. Because we must remand, we decline to address the
former husbandís claim regarding the trial courtís order that he secure the money
awarded to the former wife against the property awarded to him.

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