FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Heather Pinder
Popovich, of Popovich Law Firm, P.A., Orlando, for Appellant.
J. Helton, Dylan J. Hall, Barry V. Newton, Jr. and Mary A.
Joyner, of Law Office of Pamela J. Helton, P.A., Clermont,
Stufft ("Husband") appeals the final judgment
dissolving his long-term marriage to Sharon Aull Stufft
("Wife"). Husband challenges the provision in the
judgment that characterizes payments to be made by him to
Wife for her one-half interest in an equitably distributed
marital asset as also being "support, " enforceable
by contempt. Husband also contends that the trial court erred
in failing to distribute the parties' unpaid federal
income tax liability. We agree with Husband on both issues,
and therefore, we reverse and remand for further proceedings.
the course of the marriage, Husband began an airbrushing
business that he later sold for the sum of $250, 000, to be
paid to him in regular installment payments. Husband is also
to receive an additional seven percent of all gross sales of
the business, as well as seven percent of the sale price of
the business if the business is later resold. The trial court
found that the business and all sums to be paid to Husband as
a result of its sale are marital property, which neither
party challenges. In its final judgment, the court ordered
that as part of the equitable distribution of the
parties' marital assets, Husband and Wife are to
"equally split" all proceeds from the sale of this
"marital business, " with Husband to deliver to
Wife her one-half share of the proceeds within ten days of
Husband's receipt of any payments from the purchaser of
this business. The court further ordered that any failure by
Husband to pay Wife her share of the proceeds from the sale
of this marital business would result in contempt proceedings
because this payment would be "considered support to
Wife, " despite the court having separately denied
Wife's claim for alimony or spousal
conclude that under the circumstances of this case, the trial
court erred in also characterizing Wife's equitable
distribution share in the additional monies to be received
from the sale of the marital business to be a form of spousal
support. Moreover, because "[t]he law is clear that an
award subject to equitable distribution is not enforceable by
contempt, " Lynch v. Lockyer, 180 So.3d 1120,
1121 (Fla. 5th DCA 2015) (citing Williams v.
Williams, 958 So.2d 992, 994 (Fla. 5th DCA 2007)), the
trial court erred by thereafter determining that any failure
by Husband to essentially pay money to Wife for her equitable
distribution of this marital asset would be enforced through
contempt. If Husband does not pay Wife the monies owed to her
for her share of the proceeds from the sale of the marital
business, Wife's remedies are those available to
creditors against debtors. See Lynch, 180 So.3d at
1121 (quoting Williams, 958 So.2d at 994).
Husband's second issue, the parties did not file federal
income tax returns from 1995 through 2013 and also failed to
pay their federal income taxes during this
time.The trial court found the parties'
federal tax debt to be a marital debt and made a separate
finding that Wife's testimony "of ignorance
regarding the nonpayment of taxes and the non-filing of [tax]
returns" was not credible. However, the court did not
distribute this marital debt in its final judgment. Instead,
it specifically deferred the apportionment of the income tax
liability associated with the parties' unpaid taxes to
the Internal Revenue Service.
standard of review of a trial court's determination of
equitable distribution is abuse of discretion."
Coleman v. Bland, 187 So.3d 298, 299 (Fla. 5th DCA
2016) (quoting Bardowell v. Bardowell, 975 So.2d
628, 629 (Fla. 4th DCA 2008)). We find that the trial court
abused its discretion regarding its failure to distribute the
federal tax liability. See Guobaitis v. Sherrer, 18
So.3d 28, 32-33 (Fla. 3d DCA 2009) (holding that the trial
court abused its discretion in failing to equitably
distribute parties' federal tax liability; although the
exact amount owed to the Internal Revenue Service was
uncertain, there is no doubt that the parties' federal
taxes remained unpaid and were due). The distribution of this
marital debt is governed by section 61.075(1), Florida
Statutes (2014), which provides, in pertinent part, that
"the court must begin with the premise that the
distribution should be equal, unless there is a justification
for an unequal distribution based on all relevant
factors" set forth in this subsection.
we reverse that part of the final judgment that characterizes
Wife's interest in future payments received from the sale
of the marital business as spousal support and remand with
directions to the trial court to enter an amended final
judgment that distributes the parties' marital federal
tax liability and removes any reference to the distribution
of this marital asset as spousal support and the enforcement
of the distribution of the proceeds from the sale of the
marital business by contempt proceedings. See Hertrich v.
Hertrich, 643 So.2d 115, 116 (Fla. 5th DCA 1994)
(affirming a final judgment of dissolution of marriage but
striking from the judgment an erroneous provision threatening
to enforce an equitable distribution obligation through the
trial court's contempt powers).
in part; and REMANDED with directions.
CJ, and LAMBERT, J, concur
EISNAUGLE, J., concurring in ...