Liberatore v. Liberatore

101 So. 3d 1290, 2012 Fla. App. LEXIS 21510, 2012 WL 6213456

Opinion

PER CURIAM.

In this dissolution of marriage proceeding, the former wife raises several points on appeal, only one of which warrants discussion. The former wife challenges the trial court’s allocation to her of depleted assets that she used during the pendency of the dissolution proceeding to pay her attorney. In the absence of a finding of misconduct, it is error to include a depleted marital asset in the equitable distribution scheme. Austin v. Austin, 12 So.3d 314 (Fla. 2d DCA 2009). The former husband does not dispute this legal proposition, but instead urges that the appeal of this issue is premature because the former wife might recoup this money, in whole or in part, when her motion for attorney’s fees is determined. The former husband’s argument misses the point. The distribution of marital assets is distinct from the determination of whether one spouse should pay the other spouse’s attorney’s fees. On remand, the trial court shall reconsider the distribution scheme to address this issue.

In all other respects, the final judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

ORFINGER, C.J., SAWAYA and TORPY, JJ., concur.