Full Opinion

Third District Court of Appeal State of Florida Opinion filed April 29, 2020. Not final until disposition of timely filed motion for rehearing. ________________ Nos. 3D18-919 and 3D17-2735 Lower Tribunal No. 15-10722 ________________ Carlos M. Diaz-Silveira, Appellant/Cross-Appellee, vs. Sandra Diaz-Silveira, Appellee/Cross-Appellant. Appeals from the Circuit Court for Miami-Dade County, David H. Young, Judge. Law Offices of Paul Morris, P.A., and Paul Morris; Walton, Lantaff, Schroeder & Carson, LLP and Elisa Terraferma, for appellant/cross-appellee. Perez-Abreu & Martin-Lavielle, P.A., and Andy W. Acosta and Javier Perez- Abreu, for appellee/cross-appellant. Before SALTER, FERNANDEZ, and LOBREE, JJ. FERNANDEZ, J. Sandra Diaz-Silveira (the “Wife”) appeals the trial court’s order distributing marital assets upon dissolution of marriage. Carlos Diaz-Silveira (the “Husband”) separately appeals the trial court’s order granting attorneys’ fees in the Wife’s favor.1 As to the Wife’s appeal, we reverse as to the discharged Discover credit card debt as it applies to equitable distribution and affirm on all other issues. With respect to the Husband’s appeal, we reverse and remand for the trial court to amend the attorneys’ fee order due to the Wife’s concession of error and affirm as to all other issues. This is a standard dissolution of marriage case where the parties lived well beyond their means and accrued significant debt as a result. Both parties had University of Miami retirement accounts. One year into the marriage, the Wife obtained her Bachelor of Arts degree in psychology. Testimony at trial revealed that she will make approximately $40,000.00 and potentially more once she completes her licensing. The trial court allowed the Wife to stay in the marital home until the son reaches majority as a compromise to the Wife’s request to keep the house and the Husband’s request to sell. Overall, the trial court’s distribution of assets is well- reasoned and based on competent substantial evidence. See Sheiman v. Sheiman, 472 So. 2d 521, 521 (Fla. 4th DCA 1985) (“[T]he parties have lived well beyond their means during their twelve year marriage. That, of course, clouds the financial 1 The appeals were consolidated for all purposes. 2 picture and makes unreliable many of the usual benchmarks for resolution of the issues. For example, the parties' standard of living as a factor determining needs and ability loses its punch when the standard was far too high for the circumstances of the parties.”) As to the Wife’s appeal, the only issue we need to address concerns the $14,200.00 Discover credit card debt distributed to the Husband. It is undisputed by the parties that the Discover debt had been discharged by the credit card company. “As a general proposition, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings.” Dravis v. Dravis, 170 So. 3d 849, 853 (Fla. 2d DCA 2015) (quoting Roth v. Roth, 973 So.2d 580, 584 (Fla. 2d DCA 2008)). The Husband argues that he may still receive a tax liability if the credit card company chooses to report the write-off to the IRS. However, the Husband’s forensic accountant testified that if the debt was discharged, it should not be included in the equitable distribution. The accountant further testified that the Husband had yet to receive the 1099-C form and had not received it in the previous two years. At the close of trial, the Husband still had not received the 1099-C form, and the record did not contain an estimate of the amount of tax that may be due if/when the form is issued and received. “The trial court correctly noted that it had to decide the case on the basis of the evidence before it at that time and not what would or 3 might happen in the future.” Hollinger v. Hollinger, 684 So. 2d 286, 288 (Fla. 3d DCA 1996). “A party who wants a trial court to consider the consequences of his receiving a tax burdened asset must present evidence of the tax consequences as to all assets so that the trial court may order a distribution that is equitable.” Id. (citing Vaccaro v. Vaccaro, 677 So. 2d 918, 922 (Fla. 5th DCA 1996)). Therefore, based on this precedent, the trial court abused its discretion in placing the charged off Discovery item on the Husband’s column, depriving the Wife of $7,100.00 in equitable distribution. Thus, as to the Wife's appeal, we reverse the distribution only as to the issue of the Discover credit card debt and affirm as to all other issues. As to the Husband’s appeal on the issue of attorneys’ fees, the Husband contends that it was improper for the trial court to secure the award. The Wife concedes error that the award should not have been secured, as such relief was not requested by the Wife. Therefore, we reverse and remand the fee order to be amended as a result of the Wife’s concession and affirm on all other issues. Affirmed in part; reversed in part and remanded. 4