MARCUS AMBROSE, PERSONAL REPRESENTATIVE OF THE ESTATE OF M. FRED RAYNE, APPELLANT,
v.
EMMY RAYNE, APPELLEE
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An award of exclusive use of property is subject to modification and does not preclude a subsequent partition action.
[1] An award of exclusive use of property must be determined by the equity of the cause and should be for a specified period, always subject to modification upon a change of…
[2] Property previously held by the entireties becomes a tenancy in common upon dissolution and is therefore subject to partition.
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Join FLexlaw to unlock all legal intelligenceThe trial court denied partition and granted the respondent continued use of the marital domicile, finding a prior judgment of dissolution was not sub…
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JORGENSON, Judge.
Marcus Ambrose, the personal representative of the estate of M. Fred Rayne, appeals from the trial court’s order which denied partition and granted the respondent, appellee here, continued use of the marital domicile, holding that Paragraph 3 of the original final judgment of dissolution entered in 1972 was “not subject to modification.” 1 We reverse.
An award of exclusive use of property must be determined by the equity of the cause and should be for a specified period. It is always subject to modification whenever there is a change of circumstances. Duncan v. Duncan, 379 So. 2d 949 (Fla.1980). Appellee’s reliance on Schneider v. Schneider, 296 So. 2d 77 (Fla. 3d DCA 1974) is misplaced. Schneider deals primarily with a jurisdictional issue. However, support for appellant’s position is found in Schneider, where this court held that property rights, settled in a final judgment of dissolution, may not, subsequently, be disturbed. In the matter sub judice, appellees misapprehend the effect of the final judgment entered in 1972. The property, once held by the entireties, became, at the time of dissolution, a tenancy in common. DiMartino v. DiMartino, 360 So. 2d 1133 (Fla. 3d DCA 1978); Weinstein v. Weinstein, 148 So. 2d 737 (Fla. 3d DCA 1963). The property was, thus, subject to a partition action.
Accordingly, we reverse that portion of the trial court’s judgment which precludes partition in light of the principles announced in Duncan, supra. On remand, the appellant will, of course, be required to proceed in accordance with Section 64.011, Florida Statutes (1979), et seq.
Reversed and remanded for further proceedings in accordance with the views expressed herein.
. Paragraph 3 of the original judgment reads, in pertinent part: “The Wife be, and she is hereby, awarded and granted the right to the full use and occupancy, and the full use and occupancy with the said children, of the furnished residence heretofore jointly owned by the Wife and the Husband ... without interference or molestation upon the part of the said Husband.”
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cone v. Cone, 449 So. 2d 867 (Fla. 5th DCA 1984)…er of his right to possess his interest in the property and of his right to partition.2 The exclusive possession should be for a specified period of time required for the purpose stated. Duncan v. Duncan, 379 So. 2d 949 (Fla.1980); Ambrose v. Rayne, 412 So. 2d 971 (Fla. 3d DCA 1982). See also Delehant v. Delehant, 442 So. 2d 1009 (Fla. 4th DCA 1983). A joint owner of property paying expenses necessarily attendant to the ownership of property is ordinarily entitled to reimbursement from- other joint owners for…
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Millie M. Wigginton v. Wigginton, 575 So. 2d 233 (Fla. 2d DCA 1991)…not been directed expressly in the final judgment, the property nevertheless converted to a tenancy in common as a matter of law upon the dissolution. See § 689.15, Fla.Stat. (1987); Davis v. Dieu-juste, 496 So. 2d 806 (Fla.1986); Ambrose v. Rayne, 412 So. 2d 971 (Fla. 3d DCA 1982). Any party holding property as a tenant in common may bring an action in partition so long as the requirements of chapter 64 are met. The partition complaint before us appears on its face to comply with the statutory conditions f…
Authorities Cited
- Duncan v. Duncan, 379 So. 2d 949 (Fla. 1980)
- Weinstein v. Doreene Weinstein, 148 So. 2d 737 (Fla. 3d DCA 1963)
- DI Martino v. DI Martino, 360 So. 2d 1133 (Fla. 3d DCA 1978)
- Schneider v. Schneider, 296 So. 2d 77 (Fla. 3d DCA 1974)