SHIRLEY M. POWER, APPELLANT,
v.
SHIRLEY L. POWER, APPELLEE

Fla. 5th DCA | 1980-09-10
No. 80-59
ORFINGER and SHARP, JJ., concur.
387 So. 2d 546 Florida District Court of Appeal, Fifth District (1980) Caution
Cited by 10 cases

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Synopsis

In a partition proceeding following divorce, the court affirmed the trial court's decision awarding the husband reimbursement for mortgage principal and taxes paid during his occupancy of the marital home while denying the wife's claim for rental value reimbursement. The court held that exclusive possession of the marital home awarded to the custodial parent as part of child support does not entitle the non-possessing spouse to rental reimbursement.


Holding

The court held that when a spouse is awarded custody of minor children and exclusive possession of the marital home as part of child support, the spouse out of possession is not entitled to reimbursement for rental value of the property during occupancy by the other spouse and minor children, unless the dissolution judgment specifically provides otherwise. The husband was properly awarded reimbursement for one-half of his mortgage principal and tax payments.


Headnotes

[1] A spouse awarded exclusive possession of the marital home for the purpose of child support is not entitled to reimbursement for the rental value of the property from the…

[2] A spouse awarded exclusive possession of the marital home for child support purposes is not liable to the other spouse for rental value during that period.

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Key Quotes

“exclusive possession of property subject to disposition in a dissolution proceeding [may be awarded where it is] directly connected to the obligation to pay support or temporarily necessary to prevent reduction in the value of the subject property”

Establishes the test for when exclusive possession can be awarded in dissolution proceedings

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Facts & Procedural History

Husband and wife divorced in 1973, with the husband awarded custody of minor children and possession of the marital home until the youngest child reac…

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Opinion of the Court
WALKER, GRISSIM H., Associate Judge.

WALKER, GRISSIM H., Associate Judge.

Husband brought a suit for partition, following an earlier dissolution of marriage in 1973 wherein the husband was awarded custody of the minor children and was given possession of the marital home:

until the youngest child reaches majority, dies, marries or otherwise becomes self-supporting, at which time the parties may dispose of said home as they mutually agree, and if they cannot agree, then either party may petition the Court to partition said home and upon the sale of the same to divide the net proceeds equally between them.

The youngest child reached majority in June, 1979. The parties could not agree on a disposition of the home and the suit for partition followed.

In the partition proceeding, the husband sought reimbursement for one-half of the amount he had expended during his occupancy for reduction of principal on the first and second mortgages on the property and for taxes. The wife sought reimbursement for one-half of the fair rental of the property during the husband’s occupancy. The trial court rejected the claim of the wife and awarded the husband credit for one-half of his payments on mortgage principal and taxes. The wife appealed the trial court’s denial of her request for reimbursement. We affirm.

The trial court was correct in awarding the husband reimbursement for one-half of his payments of principal on the mortgages and taxes. Rubino v. Rubino, 372 So. 2d 539 (Fla. 1st DCA 1979). Indeed, the wife does not contest this reimbursement.

The trial court was equally correct in denying reimbursement to the wife of one-half of the rental value of the home. The husband was awarded custody of the children and no monetary support was ordered to be paid by the wife to the husband for the support of the children. However, as the wife’s contribution to the support of the children, the husband was awarded possession of the residence during the minority of the children. In Duncan v. Duncan, 379 So. 2d 949 (Fla.1980), the Supreme Court stated that “exclusive possession of property subject to disposition in a dissolution proceeding [may be awarded where it is] directly connected to the obligation to pay support or temporarily necessary to prevent reduction in the value of the subject property." The award of the residence in the case sub judice was a facet of child support. Such an award to the husband by the court did not amount to an ouster of the wife by the husband. It was not an ouster of one co-tenant by another co-tenant. Thus the rule applied in Adkins v. Edwards, 317 So. 2d 770 (Fla.2d DCA 1975), and other cases cited in that opinion, does not apply to this case. None of those cases involved the award of exclusive possession of a marital residence to a spouse awarded custody of the minor children with the exclusive custody terminating when the minor children reached their majority.

Where the court awards custody of the minor children and exclusive possession of the marital home during minority of the children to one spouse, the spouse out of possession is not entitled to reimbursement for any part of the rental value of the property while occupied by the spouse and minor children, unless the court in the judgment of dissolution has specifically provided otherwise.

The trial court ordered the husband to pay $750.00 towards the wife’s attorney’s fee. Section 64.081, Florida Statutes (1979). The husband filed a cross-appeal. We find no abuse of the trial judge’s discretion in this regard.

Affirmed.

ORFINGER and SHARP, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Mahaffey v. Mahaffey, 401 So. 2d 1372 (Fla. 5th DCA 1981)
    …e house for one-half of the mortgage payments, taxes, insurance, maintenance and upkeep on the home is also a standard provision, perhaps required by the law of joint tenancy. Rubino v. Rubino, 372 So. 2d 539 (Fla. 1st DCA 1979). See Power v. Power, 387 So. 2d 546 (Fla. 5th DCA 1980). The inclusion of unlimited sums for “maintenance” and “upkeep” goes further than may be normally appropriate. However, in this case where the court chose not to recognize the wife’s “special equity” in her $20,000 contribution t…
  • Wood v. Friedman, 388 So. 2d 1355 (Fla. 5th DCA 1980)
    …be granted to the wife to provide for the support of the minor children of the parties or as a duty of support for the wife. Duncan v. Duncan, 379 So. 2d 949 (Fla.1980). The award of the residence, hence, is a facet of child support. Power v. Power, 387 So. 2d 546 No. 80-59 (Fla. 5th DCA 1980). Where the court has awarded exclusive possession to recognize a husband’s duty of support for his wife or children, there can be no “ouster” or “adverse” possession which would give rise to a claim for reasonable renta…
  • Iodice v. Scoville, 460 So. 2d 576 (Fla. 4th DCA 1984)
    …hand, the circuit court properly did not allow the appellee the rental value of the property during appellant’s use and occupancy thereof, because appellant’s occupancy was for the benefit of the children and pursuant to court order. Power v. Power, 387 So. 2d 546 (Fla. 5th DCA 1980). The mere fact that appellant claims expenditures for maintenance, repairs and improvements does not ipso facto entitle him to an award therefor. The trial judge exercises discretion in granting or denying them depending upon th…

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