SVATO HIEKE, APPELLANT,
v.
CAROLE WISE HIEKE, APPELLEE
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A trial court may award a special equity lien against a party's homestead property, even if it subjects the property to a forced sale, to secure an ownership interest.
[1] A homestead is not exempt from a forced sale when the sale is necessary to protect an ownership interest in the property.
[2] In a marriage dissolution proceeding, a court's award of a special equity in property amounts to an ownership interest.
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Join FLexlaw to unlock all legal intelligenceIn a dissolution proceeding, the trial court awarded the wife a special equity in the husband's homestead for her contributions to its construction. T…
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KLEIN, J.
We affirm the judgment dissolving the parties’ marriage, but address one issue, whether the trial court erred in awarding the wife a lien against the husband’s homestead which would subject it to a forced sale.
The trial court found that the wife, as a result of purchasing materials and expending construction labor on the husband’s home, was entitled to a special equity in the home. Noting that the husband did not have liquid assets available to pay the wife her special equity, but that the home was worth substantially more than was owed on the mortgage, the court awarded the wife an equitable lien against the home in a specific amount, which could be foreclosed if the wife was not paid within one year of the judgment. The husband appeals, arguing that the home, which is his homestead, is exempt from forced sale under Article X, section 4 of the Florida Constitution.
The husband relies on cases which hold that a homestead is exempt from forced sale by a judgment creditor, except where there has been fraud. Whigham v. Muehl, 511 So. 2d 717 (Fla. 1st DCA 1987); Greenberg v. Fontaine, 618 So. 2d 299 (Fla. 2d DCA 1993). What the husband fails to recognize, however, is that in a dissolution proceeding, the court’s award of a special equity amounts to an ownership interest. In the present case, instead of awarding the wife a lien for a specific amount, the court could have awarded her a fractional interest in the home. Landay v. Landay, 429 So. 2d 1197 (Fla.1983).
The constitutional prohibition against the forced sale of a homestead does not apply where the sale is necessary to protect an ownership interest in the property. Butterworth v. Caggiano, 605 So. 2d 56 n. 5 (Fla.1992); Tullis v. Tullis, 360 So. 2d 375 (Fla.1978). Accordingly, the trial court did not err in securing the wife’s special equity in the property by awarding her a lien which could be foreclosed.
We have considered the other issues raised by husband and find them to be without merit. Affirmed.
FARMER and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Sumner Landay v. Landay, 429 So. 2d 1197 (Fla. 1983)
- Butterworth v. Caggiano, 605 So. 2d 56 (Fla. 1992)
- Tullis v. Tullis, 360 So. 2d 375 (Fla. 1978)
- Whigham v. Muehl, 511 So. 2d 717 (Fla. 1st DCA 1987)
- Gordon v. Mayfair Builders, Inc., 618 So. 2d 299 (Fla. 4th DCA 1993)