DESMOND G. JUDGE, APPELLANT,
v.
JANET A. JUDGE, APPELLEE
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The court held that the award of the marital home as lump sum alimony was improper without a showing of necessity, and the order to sell the beach house was defective. The award of attorney's fees was void for lack of jurisdiction.
[1] A trial court may not award a marital home as lump sum alimony absent a showing of positive necessity.
[2] A trial court may grant a spouse the use and occupancy of the marital home until the parties' children reach majority, so long as the spouse remains unmarried.
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Join FLexlaw to unlock all legal intelligenceIn a dissolution proceeding, the trial court awarded the marital home to the wife as lump sum alimony and ordered the sale of a beach house with proce…
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GRIMES, Chief Judge.
The only substantial assets of the parties to this dissolution proceeding were a home in Largo and a beach house, both of which were held in tenancy by the entireties. The court awarded the home to the wife as lump sum alimony and directed the beach house to be sold and the net proceeds from the sale divided between the parties.
The award of the home as lump sum alimony cannot stand because there was no showing of positive necessity on the wife’s part. Meridith v. Meridith, 366 So. 2d 425 (Fla.1978). This award is vacated with directions to the trial court to grant the wife, so long as she remains unmarried, the use and occupancy of the marital home until the parties’ children in her custody reach their majority. Hendricks v. Hendricks, 312 So. 2d 792 (Fla. 3d DCA 1975). Keeping in mind the other portions of the judgment, the court should make such provisions for the payment of the mortgage, insurance, taxes and related expenses as may be equitable. See Fraser v. Fraser, 368 So. 2d 97 (Fla. 3d DCA 1979).
The order directing the sale of the beach house suffers from the same defects as the one in Carlsen v. Carlsen, 346 So. 2d 132 (Fla. 2d DCA 1977). As in Carlsen, this order is stricken. The cause is remanded for entry of an amended final judgment setting a reasonable period of time for the parties to conclude private arrangements for the sale of the beach house subject to the approval of the court but providing that if the disposition of the property is not amicably resolved within such time, partition and sale should proceed according to Section 64.061 et seq., Florida Statutes (1977).
The award of attorney’s fees is hereby set aside as void for lack of jurisdiction because it was entered after appellant filed the notice of appeal. Wilson Realty, Inc. v. David, No. 78-917 (Fla. 2d DCA, filed February 16, 1979).
The remaining provisions of the judgment of dissolution including the award of permanent alimony are hereby affirmed.
SCHEB and DANAHY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bailey v. Bailey, 392 So. 2d 49 (Fla. 3d DCA 1981)…ffects the subject matter on appeal. . Smith, holding that Rule 9.600(c) gives the trial court jurisdiction to make an award of attorneys’ fees notwithstanding the pendency of an appeal, receded from that court’s contrary holding in Judge v. Judge, 370 So. 2d 833 (Fla. 2d DCA 1979), in which Rule 9.600(c) was not considered. To the extent, therefore, that Smith stands for the proposition that absent the rule, there would be no jurisdiction in the trial court to award fees, we would disagree with the Second D…
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Cabrera v. Cabrera, 484 So. 2d 1338 (Fla. 3d DCA 1986)…n part, and remand for the entry of a judgment consistent with this opinion and for an equitable determination as to which party shall bear the reasonable and necessary expenses associated with the use and upkeep of the marital home. Judge v. Judge, 370 So. 2d 833 (Fla. 2d DCA 1979); Fraser v. Fraser, 368 So. 2d 97 (Fla. 3d DCA 1979). Affirmed in part; reversed in part; remanded for further proceedings consistent with this opinion.…
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Bernstein v. Berrin, 516 So. 2d 1042 (Fla. 2d DCA 1987)…judgment a trial judge loses jurisdiction to award attorney’s fees pursuant to a reservation of jurisdiction in the final judgment. See, also, United Services Automobile Association v. Smolensky, 391 So. 2d 355 (Fla. 2d DCA 1980) and Judge v. Judge, 370 So. 2d 833 (Fla. 2d DCA 1979). We take this opportunity to recede from that aspect of Wilson, Smolensky, and Judge. Experience and cases subsequent to Wilson have now convinced us that the better conclusion is that the filing of the notice of appeal does not d…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendricks v. Hendricks, 312 So. 2d 792 (Fla. 3d DCA 1975)
- Kirkland v. Johnson, 346 So. 2d 132 (Fla. 2d DCA 1977)
- Meridith v. Meridith, 366 So. 2d 425 (Fla. 1978)
- In re the Est. of Philip Siegel, 366 So. 2d 425 (Fla. 1978)
- Fraser v. Fay Fraser, 368 So. 2d 97 (Fla. 3d DCA 1979)