OTTO MILLER, APPELLANT,
v.
ABBIE JEAN MILLER, APPELLEE
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The court held that awarding exclusive possession of the marital home without a special purpose or equitable justification was error, and that the husband should receive credit for mortgage payments made.
[1] An award of exclusive possession of the marital home in a dissolution proceeding must be directly connected to the obligation to pay support or be temporarily necessary t…
[2] A trial court errs by awarding exclusive possession of the marital home without demonstrating a special purpose or that the award is equitable and just.
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Join FLexlaw to unlock all legal intelligenceThis case involves an appeal from a final judgment of dissolution of marriage. The trial court awarded the wife exclusive use and possession of the ma…
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NIMMONS, Judge.
This is an appeal from a final judgment of dissolution of marriage. We affirm in part and reverse in part.
We find that the trial court erred in two respects. First, the court erred in awarding the wife exclusive use and possession of the marital home. As stated by the Florida Supreme Court in Duncan v. Duncan, 379 So. 2d 949, 952 (Fla.1980):
The award of “exclusive possession” of property subject to disposition in a dissolution proceeding should either be directly connected to the obligation to pay support or be temporarily necessary to prevent reduction in the value of the subject property. The critical question is whether the award is equitable and just given the nature of the case. A grant of exclusive possession of property to one of the parties in a final judgment must serve a special purpose.
In the present case, the record fails to demonstrate that the award of exclusive possession of the marital home served a special purpose or that such an award was either equitable or just.
The trial court also erred by requiring the husband-to make mortgage payments on the marital home without allowing him credit for such payments upon the eventual sale of the property. A party who is made responsible for mortgage payments must be allowed credit against the nonpaying party’s share of the proceeds from the sale of the marital home. Pastore v. Pastore, 480 So. 2d 231 (Fla. 1st DCA 1985); Strollo v. Strollo, 365 So. 2d 189 (Fla. 1st DCA 1978); and Jones v. Jones, 330 So. 2d 536 (Fla. 1st DCA 1976).
We have examined the remaining points urged by appellant and find them to be without merit.
The final judgment is reversed insofar as the judgment: (1) awards the wife exclusive possession of the marital home; and (2) fails to provide the husband with credit for mortgage payments against the wife’s share of the proceeds from the sale of the home. In all other respects, the judgment is affirmed. This case is remanded with instructions to amend the final judgment in the above respects.
SHIVERS and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Collinsworth v. Collinsworth, 624 So. 2d 287 (Fla. 1st DCA 1993)…judgment sets no time limit for effecting partition, the final judgment is too indefinite in respect to the termination of the wife’s exclusive possession and thus is legally deficient. Duncan v. Duncan, 379 So. 2d 949 (Fla.1980); Miller v. Miller, 513 So. 2d 199 (Fla. 1st DCA 1987). Appellant next contends that the circuit court erred in awarding rehabilitative and permanent periodic alimony to the wife. He argues that the record does not contain competent, substantial evidence to support any findings, eve…
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Thomas v. Thomas, 667 So. 2d 1021 (Fla. 5th DCA 1996)…v. Collinsworth, 624 So. 2d 287 (Fla. 1st DCA 1993) (stating that where judgment set no time limit for effecting partition, it was too indefinite, and thus legally insufficient) (citing Duncan v. Duncan, 379 So. 2d 949 (Fla.1980); Miller v. Miller, 513 So. 2d 199 (Fla. 1st DCA 1987)). Therefore, we strike that portion of the final judgment. Pursuant to the remaining provisions, “the 1611 Blackwelder property shall be partitioned by a special master to make a sale of the property and the proceeds shall be dis…
Authorities Cited
- Duncan v. Duncan, 379 So. 2d 949 (Fla. 1980)
- Jones v. Jones, 330 So. 2d 536 (Fla. 1st DCA 1976)
- State v. Soto, 365 So. 2d 189 (Fla. 3d DCA 1978)
- Pastore v. Pastore, 480 So. 2d 231 (Fla. 1st DCA 1985)