
    Betty L. TSATIRIS, Appellant, v. George A. TSATIRIS, Appellee.
    No. 94-1037.
    District Court of Appeal of Florida, Fifth District.
    March 10, 1995.
    Rehearing Denied April 26, 1995.
    Merrily T. Longacre, P.A., Melbourne, for appellant.
    E.C. (Scott) Wright, P.A., Melbourne, for appellee.
   PER CURIAM.

AFFIRMED.

DAUKSCH, J., concurs.

PETERSON, J., concurs and concurs specially with opinion.

W. SHARP, J., dissents with opinion.

PETERSON, Judge,

concurring specially.

I respectfully write in response to the dissent.

Had I been the trial judge, I may have made a different equitable distribution in this case by distributing an interest in the wife’s retirement funds to the husband. The use of a qualified domestic relations order would have taken some of . the sting out of the tax consequences that might be suffered by the wife should she elect to take an early distribution of her retirement funds in order to pay off the first or second mortgage on her home. If she had taken this action, or if it were clear that she needed to take this action, the tax burden should have been recognized and shared by the husband when the assets were distributed. See Miller v. Miller, 625 So.2d 1320 (Fla. 5th DCA 1993). But it is not clear that the wife will be required to take the early distribution in order to meet her monthly financial demands.

The parties purchased their home in 1978. They stipulated that the value was $78,500. The parties’ equity in the home, awarded solely to the wife, was $55,000. In order to balance the equitable distribution, the court ordered the wife to execute a second mortgage on the marital home in favor of the husband. The second mortgage awarded to the husband is grossly unsecured by over $14,000 because the two mortgages exceed the value of the home. But the judge made this choice rather than invading the wife’s retirement funds totalling $90,763.

The wife complained to the trial court at a motion for rehearing and upon appeal because she feels that she cannot meet the monthly obligations placed upon her without taking an expensive early distribution of her retirement funds. She says she needs to take an early distribution in order to make the second mortgage payments to the husband and to meet the monthly living expenses of her and her daughter. It is not at all clear that she will have to do so.

The court found that the wife’s net monthly income was $2399 while the husband’s was $1000. It appears that these amounts take into account the husband’s child support obligation of $300 per month. That support will end in November 1995, when the daughter is 18. Until the supports ends, wife will have $1899 per month to support both herself and the child and $1599 per month thereafter for her sole support. These amounts are available after the monthly payments are made to the husband. The husband will have $1499 per month which includes his second mortgage income. She will have payments on the first mortgage of $377 per month plus monthly payments on a credit card debt of $12,000. He is charged with retiring a debt to the Internal Revenue Service in the amount of $12,000, but, of course, he must also pay for shelter in the form of monthly payments for rent or on a mortgage.

The $69,664 mortgage awarded to the husband as his share of the marital assets was payable over 20 years and bears six percent interest. It is apparent from the long period of amortization and modest interest that the court did not overlook the amount of income that remained for support of the wife. The award also reflects the wife’s position taken during trial that she should be awarded the marital home.and that her retirement funds should be protected. The court accommodated both wishes. Judges are often called upon to solve complex and sometimes impossible financial situations when the parties cannot settle upon a plan of distribution for assets that are not easily split. The trial judge should not be faulted for this plan of distribution after being urged by the wife during trial to award these assets to her. There is no question that both parties may have difficulty bearing the responsibilities of meeting living expenses and retiring debts individually, but the result in this ease is within the parameters of reasonableness. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).

W. SHARP, Judge,

dissenting.

In my view, the overall result of the equitable distribution of marital assets and apportionment of marital liabilities places the economic future of appellant and the parties’ child in real jeopardy. This is partly due to the judgment which grants the former husband a second mortgage on the marital home, which was awarded to the former wife. The second mortgage was intended to secure the $69,664 lump sum awarded the former husband by way of equitable distribution. However the total of the mortgage debt on the marital home exceeds the equity in the house by approximately $14,000 and the combination of the two mortgages’ monthly payments now are more than the former wife’s monthly income. She will thus be foreclosed out of her house and left homeless with the minor child, or she will have to pay off the second mortgage debt by withdrawing funds from an annuity without any ability to avoid severe tax consequences. All of these circumstances were fully presented to the trial court.

Lump sum payments to achieve equitable distribution should not exceed the financial ability of a spouse to pay and thereby endanger that spouse’s economic status. Rico v. Rico, 487 So.2d 1161 (Fla. 5th DCA 1986). Further we have held that it is an abuse of discretion to fail to consider the tax consequences of economic transactions, which result from a dissolution judgment. Miller v. Miller, 625 So.2d 1320 (Fla. 5th DCA 1993).

There are alternatives to making a lump sum distribution to the former husband of the wife’s earned retirement funds, which is the primary source of the second mortgage’s debt. She will not have access to these funds herself, until she retires, some years hence. The trial court could have directed that a portion of each payment be paid to the former husband at the time payments commence to be made to her. That would have avoided the punitive tax consequences which follows from an early withdrawal of funds.

I am also troubled that the trial court may not have given adequate consideration to:

[t]he desirability of retaining the marital home as a residence for any dependent child of the marriage, ... when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated.

§ 61.075(l)(h). In this case, were it not for .the second mortgage debt created by the dissolution decree, there is no apparent reason the former wife and child could not have continued to live in the marital home. Her income was sufficient to have paid the expenses and first mortgage indebtedness, and apparently the trial judge intended that they continue to live there, since he awarded the marital home to the former wife. But given the undisputed post-dissolution financial circumstances of the parties, that is a most unlikely result of the decree.

I would reverse the equitable distribution provisions of this final dissolution judgment and remand for consideration of the tax consequence to the former wife, for revision of the awards in such a fashion as to reduce the punitive tax consequence to the wife, and to fashion a post-dissolution decree, which will permit her to remain living in the marital residence during the minor child’s minority.  