FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Tanya Davis Wilson,
R. Dewitt, of Dewitt Law Firm, P.A., Orlando, for Appellant.
Jennifer R. Dixon and Crystal Buit, of Lowndes, Drosdick,
Doster, Kantor & Reed, P.A., Orlando, for Appellee.
Nelson Sumlin, the former husband, appeals the trial
court's final judgment of dissolution of marriage. We
affirm the trial court's order striking the former
husband's 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 parties' marriage, but
reverse the plan of equitable distribution and remand for the
trial court to consider the tax consequences of the former
husband's retirement account and to account for the full
marital portion of the former wife's 401(k) withdrawal.
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 parties' 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 husband's
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 accountant's 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 husband's
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.
former husband argues that the trial court erred when it
considered the tax consequences applicable to the former
wife's 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
husband's Merrill Lynch retirement account, which he
received as part of equitable distribution. The former
husband is correct. "Consideration of the consequences
of income tax laws on the distribution of marital assets . .
. is required and failure to do so is ordinarily reversible
error." 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
husband's pension and DROP account when dividing
parties' assets). The purpose of considering tax
consequences is to ensure that one party is not "charged
with the full value of an asset that is burdened with an
inevitable payment of taxes." 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 husband's pension).
the former husband correctly argues that the equitable
distribution worksheet contains an error regarding the former
wife's 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. 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 husband's withdrawal
from 401(k) account to purchase property because 401(k)
account necessarily was going to be taxed).
we reverse the portions of the final judgment relating to the
equitable distribution of the parties' marital assets and
liabilities, and remand for a recalculation of the equitable
distribution award. Because we must remand, we decline to
address the former husband's claim regarding the trial
court's order that he secure the money awarded to the
former wife against the property awarded to
in part, REVERSED in part, and REMANDED with instructions.
TRAVER, J, concurs EISNAUGLE, J, concurring in part and
dissenting in part with opinion.
EISNAUGLE, J., concurring in part, dissenting in part.
that the equitable distribution plan must be reversed for the
trial court to consider the tax consequences of the former
husband's Merrill Lynch retirement account. However, I
dissent from the portion of the majority's opinion
reversing the error in the equitable distribution worksheet
relating to the former wife's 401(k) account because it
is unpreserved. Eagleman v. Korzeniowski, 924 So.2d
855, 860 (Fla. 4th DCA 2006) ("In order to be preserved
for appellate review, ...