LONG v. LONG (2000)

The former husband appeals a postjudgment order denying his claim for sums he contends were overpaid to the former wife after entry of the final judgment.   We conclude that the husband is entitled to partial relief.

 The final judgment of dissolution of marriage provided that the wife's equitable distribution would include $50,000 from the husband's retirement plan, by way of a Qualified Domestic Relations Order (“QDRO”).   Since it was the wife's decision to withdraw this amount from the QDRO, the wife should be responsible for taxes and penalties on the early withdrawal of that sum, rather than the husband.

 The court allowed the husband to create a QDRO containing the $50,000 plus another $68,000 to serve as an appeal bond.   This was security for the $50,000 QDRO already discussed plus another $68,000 the judgment required the husband to pay the wife in cash.   When the husband's appeal failed, both amounts were withdrawn from the QDRO to pay the husband's obligations to the wife.

As already discussed, under the final judgment, it was the husband's obligation to transfer to the wife $50,000 in a QDRO. It was the wife's decision to make an early withdrawal of that amount and she should pay the taxes and penalties on that amount.

It was, however, the husband's obligation to pay the wife the remaining $68,000 in cash.   The trial court was entirely correct in ruling that taxes and penalties for early withdrawal of the latter amount are the responsibility of the husband.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

I respectfully dissent.   When the trial court entered the final judgment of dissolution of marriage, the order specifically provided that “the assets will be split fifty/fifty.”   However, when the trial court ordered the funds from the Qualified Domestic Relations Order released, the husband was forced to pay substantial penalties and taxes for early withdrawal of his 401k account.   This court has now held that the wife is responsible for whatever taxes and penalties she incurs when she makes an early withdrawal from that fund.

It is not possible from this record to determine the exact amounts of penalties and taxes each party is responsible for.   It is entirely possible that the husband will end up with more tax liabilities and penalties than the wife;  that result would be contrary to the trial court's specific directive that the parties' assets be split “fifty/fifty.”

I would reverse the order on appeal and remand this matter to the trial court to determine the tax liabilities of each party in order to ensure that this distribution of assets complies with the trial court's directive.   See Werner v. Werner, 587 So.2d 473 (Fla. 3d DCA 1991).

PER CURIAM.

COPE and RAMIREZ, JJ., concur.