Opinion
Case No. 2D19-181
02-05-2021
Diane PETERSON, Appellant, v. Charles PETERSON, Appellee.
Tarya A. Tribble of Tribble Law Center, P.A., Riverview, for Appellant. No appearance for Appellee.
Tarya A. Tribble of Tribble Law Center, P.A., Riverview, for Appellant.
No appearance for Appellee.
SILBERMAN, Judge.
Diane Peterson, the Wife, seeks review of an amended final judgment of dissolution of her marriage to Charles Peterson, the Husband. The Wife challenges only the equitable distribution of the Husband's 401k Plan and the proceeds from the sale of the marital home. We conclude that the trial court erred by failing to assign the dissipated portion of the 401k to the Husband on the equitable distribution worksheet and reverse on that basis alone. We affirm the remainder of the amended final judgment without further comment.
In the amended final judgment, the trial court awarded the Wife fifty percent of the Husband's 401k as of the date of filing plus fifty percent of all subsequent increases in the 401k. The court found that the 401k was valued at $131,471.22 at the time of filing. The court also found that the Husband intentionally dissipated $14,285 from the 401k plan after the petition for dissolution was filed. The court therefore determined that the Wife was entitled to $72,878.11, which was her half of the value of the plan as of filing ($65,735.61) plus one-half of the $14,285 that the Husband intentionally dissipated ($7,142.50).
However, the equitable distribution worksheet incorporated into the amended final judgment was inconsistent with the trial court's findings. The worksheet shows the distribution of the Husband's 401k as follows:
| Asset | Date of valuation | Value | Husband | Wife | Non-Marital |
|---|---|---|---|---|---|
| Frontier Retirement | Date of filing | 131,471.22 | 58,593.11 | 72,878.11 |
The Wife correctly argues that the worksheet lists incorrect values as to the 401k plan. The worksheet reflects neither an assignment to the Husband of the dissipated funds nor a credit to the Wife for half of the amount dissipated. Instead, the worksheet reflects an assignment of half of the dissipated funds to the Wife by subtracting them from the Husband's half of the 401k ($65,735.61 - $7,142.50 = $58,593.11). And the worksheet reflects an assignment of the other half of the dissipated funds to the Wife by adding them to her half of the value of the 401k ($65,735.61 + $7,142.50 = $72,878.11). This had the effect of awarding the Husband a credit for the funds he dissipated. These errors resulted in the Wife not receiving the full $72,878.11 of the 401k awarded to her in the amended final judgment which in turn resulted in the Wife owing the Husband an equalizing payment.
When the court finds that a party has engaged in misconduct that dissipated marital funds, the court should assign the dissipated funds to the dissipating spouse in the equitable distribution scheme. See Tate v. Tate, 91 So. 3d 199, 205 (Fla. 2d DCA 2012) ; Mattison v. Mattison, 266 So. 3d 258, 261 (Fla. 5th DCA 2019). Alternatively, the court could give the innocent spouse a credit for half the amount dissipated. See, e.g., Stantchev v. Stantcheva, 168 So. 3d 313, 315 (Fla. 5th DCA 2015).
Here, the equitable distribution worksheet does not accurately reflect the trial court's findings, impacting the intended distribution of the 401k plan and the equalizing payment. Accordingly, we reverse and remand for the court to revise the equitable distribution worksheet in order to effectuate the distribution contemplated by the amended final judgment.
Affirmed in part, reversed in part, and remanded.
VILLANTI and SLEET, JJ., Concur.