IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

JOSEPH STUFFT ,

Appellant ,
v. Case No. 5D 17

- 149 SHARON AULL STUFFT ,

Appellee

. ________________________________/ Opinion filed February 23, 2018 Appeal from the Circuit Court for Orange County , Heather Pinder Rodriguez , Judge. Nikie Popovich , of Popovich Law Firm, P

. A

. , Orlando, for Appellant. Pamela J. Helton, Dylan J. Hall, Barry V. Newton, Jr. and Mary A. Joyner, of Law Office of Pamela J

. Helton, P

. A

. , Clermont, for Appellee.

PER CURIAM. Joseph Stufft (“Husband”) appeals the final judgment dissolving his long

- term marriage to Sharon Aull Stufft (“Wife”). Husband challenges the provision in the judgment
that characterizes payments to be made by him to Wife for her one - half interest in an equitably distributed marital asset as also being “support , ” enforceable by contempt.
Husband also contends that the trial court erred in failing to distribute the parties’ u npaid2

federal income tax liability. We agree with H usband on both issues , and therefore, we reverse and remand for further proceedings. During the course of the marriage, Husband began an airbrushing business that he later sold for the sum of $250,000, to be paid to him in regular installment payments.
Husband is also to receive an additional seven percent of all gross sales of the business, as well as seven percent of the sale price o f the business if the business is la ter resold. The trial court found that the business and all sums to be paid to Husband as a result of
its sale are marital property, which neither party challenge s

. In its final j udgment, the
court ordered that a s part of the equitable distribution of the parties’ marital assets, Husband and Wife are to “equally split” all proceeds from the sale of this “marital business,” with Husband to deliver to W ife her one

- half share of the proceeds within ten days of Husband’s receipt of any payment s from the purchaser of thi s business

. T he court further ordered that any f ailure by Husband to pay W ife her share of the proceeds from the sale of this marital business would result in contempt proceedings because this payment would be “considered support to W ife, ” despite the cou rt having separately denied Wife’s claim for alimony or spousal support

. 1
We conclude that under the circumstances of this case , the trial cour t erred in also characterizing W ife's equitable distribution share in the additional monies to be received from the sale of the marital business to be a form of spousal support. Moreover, because

“ [ t ] he law is clear that an award subject to equitable distribution is not enforceable by contempt , ” Lynch v. Lockyer , 180 So. 3d 1120, 1121 (Fla. 5th DCA 20 15) (citing Williams

1 The court found that Wife's current monthly income is $2400 and Husband's current monthly income is $2240. Wife has not filed a cross

- appeal challenging the court’s denial of her request for alimony.3

v. Williams , 958 So. 2 d 992, 994 (Fla. 5th DCA 2007)), the trial cou rt erred by thereafter determining that any failure by Husband to essentially pay money to W ife for her equitable distribution of this marital asset would be enforced through contempt. If Husband does not pay Wife the monies owed to her f o r her share of the proceeds from the sale of the marital business, Wife’s remedies are those available to creditors against debtors. See Lynch, 180 So. 3d at 1121 ( quoting Williams , 958 So. 2d at 994). As to Husband’s second issue, the parties did not file federal income tax returns from 1995 through 2013 and also failed to pay their federal income taxes during this time. 2 The trial court found the parties’ federa l tax debt to be a marital debt and made a separate finding that Wife’s testimony “of ignorance regarding the nonpayment of taxes and the

non - filing of [tax] returns” was not credible. However, t he court did not distribute this
marital debt in its final judgment

. Instead , it specifically deferred the apportion ment of the income tax liability associated with the parties ’ unpaid taxes to the Internal Revenue Service

. “The standard of review of a trial court’s determination of equitable distribution is abuse of discretion.” C oleman v. Bland , 187 So. 3d 2 98, 299 (Fla. 5th DCA 2016) (quoting
Bardowell v. Bardowell , 975 So. 2d 628, 629 (Fla. 4th DCA 2008)). We find that the trial court abused its discretion regarding its failure to distribute the federal tax liability. See G uo b aitis v. Sherrer

, 18 So. 3d 28, 3 2

– 33 (Fla. 3d DCA 2009) (holding that the trial court abused its discretion in failing to equitably distribute parties’ federal tax liability; although the exact amount owed to the Internal Revenue Service was uncertain, t here is no doubt

2 The amount of the parties’ federal income tax liability had not been determined a t the time of trial.4

that the parties’ federal taxes remained unpaid and were due). T he distribution of this
marital debt is governed by section 61.07 5 ( 1 ) , Florida Statutes (2014), which provides , in pertinent part, that “ the c o urt must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors” set forth in this subsection. Accordingly, we reverse that part of the final judgment that ch aracterizes W ife ' s interest in future payments received from the sale of the marital business as spousal support and remand with directions to the trial court to enter an amended final judgment that distributes the parties’ marital federal tax liability and removes any reference to the distribution of this marital asset as spousal support and the enforcement of the distribution of the proceeds from the sale of the marital business by contempt proceedings. See
Hertrich v. Hertrich , 643 So. 2d 115, 116 (Fla. 5th DCA 1994) (affirming a fi nal judgment of dissolution of marriage but striking from the judgment an erroneous provision threatening to enforce an equitable distribution obligation through the trial court's contempt powers). REVERSED in part; and REMANDED with directions

. COHEN, C.J., and LAMBERT , J., concur. EISNAUGLE , J., concur s in part and dissents in part , with opinion

.5 Case No. 5D 17

- 149

EISNAUGL E, J., concurring in part, dissenting in part

. I would not reach the contempt issue because it is not ripe

. See Nathanson v.
Rish y ko , 140 So. 3d 1054, 1055 ( Fla. 4th DCA 2014) (holding that the district court lacked jurisdiction to review a contempt order where no sanction was imposed) ; see also Diaz v. Citizens Prop. Ins. Corp. , 227 So. 3d 735, 736 (Fla. 3d DCA 2017) ( “ [W]e are without jurisdiction to address the portion of the appeal relating to attorney ’ s fees. This is so because no amount has been fixed by the trial court and the part of the final judgment that finds entitlement thereto is not ripe for our review. ” ) ; Mills v. Martine z , 909 So. 2d 340, 342 (Fla. 5th DCA 2005) ( holding that determination o f entitlement to attorney’s fees without setting amount was non

- final , interlocutory order ev en though it was included in

a final judgment ) . I otherwise concur.