ESTHER B. RAY, APPELLANT,
v.
WENDELL E. RAY, APPELLEE
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Florida appellate court affirmed divorce judgment on property division and support awards but reversed to require husband to share income tax refund from stock sale with wife.
A wife is entitled to receive one-half of an income tax refund resulting from the sale of marital property, even though the trial court awarded her one-half of the net sale proceeds.
[1] An income tax refund resulting from an overpayment of tax on the sale of marital property is subject to equitable division between spouses in a divorce proceeding.
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Join FLexlaw to unlock all legal intelligenceHusband and wife owned all stock in Discountland of Dade, Inc. Upon divorce, the trial court awarded the wife approximately one-half of the net procee…
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From a judgment granting her suit for divorce the plaintiff appealed, charging error in rulings therein relating to her property claims and contending that the allowances made to her for alimony and child support were inadequate. We have examined the several contentions of the appellant in the light of the record and briefs and find therein no lawful basis to disturb the judgment, except in the respect specified below. The case was fully tried, and with the exception of the item noted below, the trial court ruled correctly on the issues relating to property. The matter of the amounts to be allowed for alimony and child support was one resting in the sound judicial discretion of the court. In our view the appellant has not sustained her burden to show an abuse of discretion therein.
The appellee received a substantial income tax refund which resulted from an overpayment of income tax on the sale of Discountland of Dade, Inc. of which all of the stock was held by or for the parties. The trial court held the appellant wife was entitled to receive approximately one half of the net proceeds from that sale, but did not make provision for the appellant to receive from the appellee one half of such tax refund. Upon remand of the cause the judgment should be amended to so provide. Other than as to that feature the judgment is affirmed.
Affirmed in part and reversed in part and remanded.
ON REHEARING
A petition of the appellee for rehearing and for clarification discloses that the income tax refund referred to in our opinion of March 9, 1971, has not yet been received. We directed that upon remand of the cause provision should be made for the appellant wife to receive one half of the tax refund. Our decision is clarified and amended to direct that upon remand provision should be made by the trial court for the appellant wife to receive one half of the said income tax refund when the same is refunded or otherwise made available to *474the parties or to the appellee. Except for this clarification and modification our judgment and opinion in this case is adhered to, and the petition for rehearing is denied.
A petition of the appellee for rehearing and for clarification discloses that the income tax refund referred to in our opinion of March 9, 1971, has not yet been received. We directed that upon remand of the cause provision should be made for the appellant wife to receive one half of the tax refund. Our decision is clarified and amended to direct that upon remand provision should be made by the trial court for the appellant wife to receive one half of the said income tax refund when the same is refunded or otherwise made available to the parties or to the appellee. Except for this clarification and modification our judgment and opinion in this case is adhered to, and the petition for rehearing is denied.
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Plevy v. Plevy, 295 So. 2d 139 (Fla. 4th DCA 1974)…3 (2d D.C.A.Fla.1973); Fishman v. Fishman, 245 So. 2d 258 (3d D.C.A.Fla.1971); see Doane v. Doane, 279 So. 2d 46 (4th D.C.A.Fla.1973); King v. King, 271 So. 2d 159 (1st D.C.A.Fla.1973); Swain v. Swain, 270 So. 2d 747 (2d D.C.A.Fla.1972); Ray v. Ray, 247 So. 2d 473 (3d D.C.A.Fla.1971). We are mindful that the wife has the right to apply for modification if there should be a change in the circumstances of the parties. Fla.Stat. 61.14, F.S.A., (1971); see Carmel v. Carmel, 282 So. 2d 6 (3d D. [*140] C.A.Fla.197…