2D05-5228 / Wamsley v. Wamsley

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State: Florida

Court: Florida Southern District Court

Docket No: 2D05-5228

Case Date: 05/11/2007

Plaintiff: 2D05-5228 / Wamsley

Defendant: Wamsley

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MICHAEL BRYAN WAMSLEY, ) ) Appellant/Cross-Appellee, ) ) v. ) ) ANN MARIE WAMSLEY, ) ) Appellee/Cross-Appellant. ) ___________________________________ ) Opinion filed May 11, 2007. Appeal from the Circuit Court for Hillsborough County; J. Kevin Carey, Judge. Joryn Jenkins of Joryn Jenkins & Associates, Tampa, for Appellant/CrossAppellee. Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appellee/CrossAppellant.

Case Nos. 2D05-5228 2D05-6130 2D06-582 CONSOLIDATED

LaROSE, Judge.

Michael Bryan Wamsley (the Husband) appeals three partial final judgments entered in his dissolution action below. We dismiss his challenge to the trial court's ruling that Ann Marie Wamsley (the Wife) is entitled to attorney's fees. Because

the trial court did not determine a fee amount, that order is not appealable. See Salem v. Abram, 868 So. 2d 1213, 1214 (Fla. 2d DCA 2004). We affirm the trial court's rulings on the Husband's remaining issues without further discussion. In her cross-appeal, the Wife argues that the trial court erred in excluding business "pass-through" income and employment benefits from the Husband's gross income, in awarding the federal dependency tax exemption to the Husband, and in setting an inadequate interest rate for the equitable distribution payment schedule. We conclude that the trial court properly excluded the Husband's pass-through income from his gross income, and we explain our reasoning below. We reverse the dependency tax exemption award. As we explain more fully below, the trial court did not require the Wife to waive the exemption and failed to make the award contingent upon the Husband staying current in his support payments. The Husband properly concedes that the interest rate applicable to the equitable distribution payment schedule should reflect the 2006 statutory interest rate of nine percent. Thus, we reverse as to this issue. We affirm the exclusion of the employment benefits without discussion. Pass-Through Income The Husband is the Chief Executive Officer and majority shareholder of a company recognized as a Subchapter S Corporation under the Internal Revenue Code. Federal tax law requires him to report pass-through income1 to the IRS on a K-1 statement. The Husband's 2003 and 2004 K-1 statements reported $71,725 and $118,926 of pass-through income, respectively. His financial affidavits in the trial court, however, showed no such income. "Pass-through" income reflects a Subchapter S Corporation's income and losses not taxed at the corporate level, but taxed directly to the corporation's shareholders on a prorata basis. Friedman v. C.I.R., 216 F.3d 537, 538-39 n.2 (6th Cir. 2000) (citing 26 U.S.C.

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