PETER J. CALAMORE, APPELLANT,
v.
JEANNE F. CALAMORE, APPELLEE
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The Fourth District Court of Appeal reversed the trial court's distribution of marital assets in a divorce case, finding that the court failed to account for tax and penalty consequences when awarding the wife $15,000 from the husband's deferred compensation savings plan, improperly distributed a custodial account contrary to the parties' stipulation, and awarded attorney's fees without making required statutory findings.
The trial court erred in all three respects. The court failed to equitably distribute the parties' assets by not accounting for the significant difference between the pre-tax and post-tax values of the deferred compensation plan. The court improperly distributed the custodial account in violation of the parties' explicit stipulation. The attorney's fees award was reversed because the final judgment failed to include required findings under Florida law.
[1] A trial court errs in awarding a portion of a deferred compensation savings plan as lump sum alimony without considering the tax and penalty consequences of withdrawal.
[2] A trial court errs in distributing an account designated for minor children under the Uniform Gift to Minors Act contrary to the parties' stipulation.
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Join FLexlaw to unlock all legal intelligence“the trial court failed to equitably distribute the parties' assets”
Establishes the core holding that the trial court's asset distribution was inequitable due to failure to consider tax consequences
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Join FLexlaw to unlock all legal intelligencePeter and Jeanne Calamore divorced. The trial court awarded the wife $15,000 in lump sum alimony from the husband's deferred compensation savings plan…
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PER CURIAM.
We reverse the trial court’s distribution of the parties’ marital assets.
We hold that the trial court erred in awarding the wife $15,000.00 from the husband’s deferred compensation savings plan as lump sum alimony with no apparent consideration of the tax and penalty consequences to be incurred. The savings plan is a deferred compensation plan through which the employer matches 50% of the employee’s contribution, up to a maximum of 3% of the employee’s income. Upon withdrawal, the husband must pay taxes and penalties on the tax deferred portion of the plan. The final judgment states that the savings plan was worth $100,000.00 at the time of dissolution and awards the wife $15,000.00 lump sum alimony from the plan. However, using the husband’s current tax rate of 28%, the husband’s accountant determined that the savings plan is only worth $64,191.00 if the money is withdrawn now. In light of this considerable difference between the pre-and post-tax values of the plan, we find that the trial court failed to equitably distribute the parties’ assets.
We also hold that the trial court erred in distributing as a marital asset the account entitled “Peter Calamore as Custodian for Three Minor Children under the Uniform Gift to Minor’s Act.” The parties had stipulated that the account would not be distributed and that the wife’s name would be added to the account so that both parties would be given equal control of the trust. Thus, the trial court erred in distributing the account in a manner contrary to the parties’ stipulation.
Furthermore, the award of attorney’s fees to the wife is revérsed because the final judgment omitted the findings required pursuant to Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985). Upon remand, the trial court shall make the requisite findings under Rowe. Wilkins v. Wilkins, 546 So. 2d 44, 46 (Fla. 4th DCA 1989).
Accordingly, the award of attorney’s fees to the wife and the distribution of the marital assets in the final judgment is reversed and the case remanded for a rede-termination of an equitable distribution of the parties’ assets and an award of attorney’s fees, if appropriate.
REVERSED AND REMANDED.
GLICKSTEIN, WALDEN and GUNTHER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Gentile v. Gentile, 565 So. 2d 820 (Fla. 4th DCA 1990)…lan held with his employer. However, the money from this plan is not available to the husband without incurring a 40% tax and penalty on withdrawal. Such a consequence should have been considered by the trial court but was not. Calamore v. Calamore, 555 So. 2d 1302 (Fla. 4th DCA 1990). Secondly, the thrift plan was part of the trial court’s equitable distribution of marital assets. The husband was allowed to keep his entire plan and pension. In return, the wife was awarded the husband’s interest in the house.…
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Brock v. Newman Brock, 690 So. 2d 737 (Fla. 5th DCA 1997)…. 5th DCA 1993) (Sharp, W., J., concurring specially); Nicewonder v. Nicewonder, 602 So. 2d 1354 (Fla. 1st DCA 1992); Blythe v. Blythe, 592 So. 2d 353 (Fla. 4th DCA 1992); Gentile v. Gentile, 565 So. 2d 820 (Fla. 4th DCA 1990); Calamore v. Calamore, 555 So. 2d 1302 (Fla. 4th DCA 1990). . Stodtko v. Stodtko, 636 So. 2d 814 (Fla. 3d DCA 1994) (error to impute earnings to husband higher than he had ever earned in his job as construction worker, for child support purpose); Gentile v. Gentile, 565 So. 2d 820 (Fla.…
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Werner v. Werner, 587 So. 2d 473 (Fla. 3d DCA 1991)…ameron, 570 So. 2d 1087 (Fla. 1st DCA 1990). When the court allocates an asset that is accompanied by tax liability, the court should consider the resulting tax liability. Gentile v. Gentile, 565 So. 2d 820 (Fla. 4th DCA 1990); Calamore v. Calamore, 555 So. 2d 1302 (Fla. 4th DCA 1990). Expert testimony demonstrated that the notes and mortgages awarded to the husband as part of the equitable distribution of property carried tax liabilities and supported the trial court’s determination of the values. We therefor…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Patient's Comp. Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985)
- Wilkins v. Wilkins, 546 So. 2d 44 (Fla. 4th DCA 1989)