PRISCILLA MCMASTER, WIFE, APPELLANT,
v.
JOSEPH ROBB MCMASTER, HUSBAND, APPELLEE

Fla. 4th DCA | 1980-01-30
No. 77-2643
LETTS, J., and MIETTE K. BURN-STEIN, Associate Judge, concur.
379 So. 2d 189 Florida District Court of Appeal, Fourth District (1980) Positive Treatment
Cited by 6 cases

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Synopsis

In this dissolution of marriage case, the Florida Fourth District Court of Appeal reversed the trial court's decision to limit the wife's occupancy of the marital home only until the parties agreed to sell it or it was judicially partitioned. The court held that the wife was entitled to exclusive use and occupancy of the marital home for as long as she remained unmarried and used it as a residence for herself and the minor child.


Holding

The court held that the wife was entitled to exclusive use and occupancy of the marital home for as long as she remained unmarried and continued to use the home as a residence for herself and the minor dependent unmarried child. The trial court abused its discretion in limiting this right only until the parties agreed to a sale or judicial partition.


Headnotes

[1] A wife may be entitled to exclusive use and occupancy of the marital home formerly held as a tenancy by the entirety, as long as she remains unmarried and uses the home a…

[2] A trial court abuses its discretion by limiting a spouse's exclusive use and occupancy of the marital home to the period before an agreement on sale or judicial partition…

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Key Quotes

“it is well established that a wife may be entitled to exclusive use and occupancy of the marital home formerly held as a tenancy by the entirety, as long as she remains unmarried and uses the home as a residence for herself and minor children who are dependent upon the parties for support”

Establishes the legal standard for awarding exclusive use and occupancy of the marital home to a wife in dissolution proceedings

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Facts & Procedural History

The parties were married approximately eight years and had one child, age six, at the time of dissolution. The trial court awarded the wife custody of…

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Opinion of the Court
MOORE, Judge.

MOORE, Judge.

The parties to this dissolution of marriage action were married approximately eight years and had one child, age six, at the time of the dissolution. The appellant-wife appeals from the final judgment, which was modified on rehearing. She argues alternatively that the court should have awarded her the husband’s interest in the marital home as lump sum alimony or it should have granted her exclusive possession of the marital home. We reverse in part.

In the final order, as modified, the trial court awarded -«the wife, among other things, the custody of the child, alimony of $90.00 per week and child support of $35.00 per week. She was awarded possession of the marital home only until the parties reached an agreement regarding its sale, or until the property was judicially partitioned. The husband was ordered to pay all mortgage payments, insurance and taxes on the marital home until it was sold or partitioned, at which time he was to be credited for the principal reduction of the mortgage.

Under appropriate circumstances, a wife may be awarded the husband’s interest in a marital home as lump sum alimony. Our review of the record in the instant case fails to indicate any justification for such an award. Nevertheless, it is well established that a wife may be entitled to exclusive use and occupancy of the marital home formerly held as a tenancy by the entirety, as long as she remains unmarried and uses the home as a residence for herself and minor children who are dependent upon the parties for support. Bianchini v. Bianchini, 374 So. 2d 620 (Fla. 4th DCA 1979); Singer v. Singer, 342 So. 2d 861 (Fla. 1st DCA 1977).

We recognize that the trial court was dealing with a difficult situation because the upkeep of the marital home was expensive and, in his opinion, not within the means of the parties. In addition, the home was being wasted. Nevertheless, the record reflects that the husband had a gross income of approximately $750.00 per week, out of which he was ordered to pay the alimony, child support, mortgage payments, insurance and taxes. On the other hand, the wife was unemployed and had no income. In view of their respective financial positions, the trial court should have awarded the wife exclusive use and occupancy of the marital home for as long as she remains unmarried and continues to use the home as a residence for herself and the minor, dependent, unmarried child. In our judgment, the trial court abused its discretion in limiting the wife’s exclusive use and occupancy only until the parties agreed to a sale of the property or until the property was judicially partitioned. See Singer v. Singer, supra.

During the course of the proceedings in the trial court a lien for attorneys fees was impressed upon the proceeds of any recovery by the wife in favor of her former attorneys who withdrew during the course of the litigation. The parties have now stipulated that the lien should be quashed and voided. Accordingly, on remand, the trial court should quash and void the lien in favor of appellant’s former attorneys.

In all other respects, the final order of dissolution of marriage, as modified on rehearing, is affirmed, and this cause is remanded to the trial court with directions to enter an amended final judgment consistent with the views expressed herein. REVERSED IN PART and AFFIRMED IN PART.

LETTS, J., and MIETTE K. BURN-STEIN, Associate Judge, concur.


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Citator

Cited By

  • Schumaker v. Schumaker, 931 So. 2d 271 (Fla. 5th DCA 2006)
    …have been awarded alimony and that it should have been in the form of the marital residence. Alternatively, she argues exclusive possession of the marital residence should have been made to her as an incident of child support. McMaster v. McMaster, 379 So. 2d 189 (Fla. 4th DCA 1980). Further, the provision dealing with the marital residence is unclear and unworkable. We find no breach of discretion in the court’s refusal to award alimony. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). This was not a lo…
  • In re the Marriage of Henry James Caldwell v. Caldwell, 400 So. 2d 1270 (Fla. 5th DCA 1981)
    …2d 949 (Fla.1980), the Florida courts held that the cústodial parent was entitled to the exclusive use and possession of the marital home until the parties’ children reached majority or until his or her remarriage. See, e. g., McMaster v. McMaster, 379 So. 2d 189 (Fla. 4th DCA 1980); Bailey v. Bailey, 361 So. 2d 204, 205 (Fla. 1st DCA 1978); Jones v. Jones, 330 So. 2d 536 (Fla. 1st DCA 1976); Hendricks v. Hendricks, 312 So. 2d 792 (Fla. 3d DCA 1975). Duncan rejected the asserted “inflexible rule” that exclus…
  • Anderson v. Anderson, 424 So. 2d 943 (Fla. 5th DCA 1983)
    …non v. Morris, 407 So. 2d 372 (Fla. 1st DCA 1981); Lambert v. Lambert, 403 So. 2d 484 (Fla. 1st DCA 1981); Caldwell v. Caldwell, 400 So. 2d 1270 (Fla. 5th DCA 1981); Abella-Fernandez v. Abella, 393 So. 2d 40 (Fla. 3d DCA 1981); McMaster v. McMaster, 379 So. 2d 189 (Fla. 4th DCA 1980). This result is not affected by the fact that the custodial spouse was required to make the mortgage, tax and insurance payments on the ex-marital home as an incident of such exclusive possession.2 Accordingly, the order dismiss…

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