DENISE HELD FIRKEL, APPELLANT,
v.
EARL RICHARD FIRKEL, APPELLEE
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In this divorce appeal, the Florida District Court of Appeal affirmed the trial court's award of a special equity in the marital residence to the husband but reversed and remanded the award of indefinite exclusive possession, finding that such possession must be limited to a specified period with documented justification.
The court affirmed the award of special equity but reversed the award of indefinite exclusive possession. Exclusive use of property must be for a specified period, not indefinite, and must be supported by equitable reasons appearing in the record.
[1] An appellant challenging the sufficiency of the evidence must provide a complete record of the proceedings below; otherwise, an appellate court must presume sufficient ev…
[2] An award of exclusive use of jointly owned property must be for a specified period and determined by the equity of the cause.
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Join FLexlaw to unlock all legal intelligence“An award of exclusive use of property must be determined by the equity of the cause and should be for a specified period.”
Establishes the controlling legal standard that exclusive possession awards must be limited in duration and equitably justified.
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Join FLexlaw to unlock all legal intelligenceDenise and Earl Firkel divorced. The trial court awarded Earl a special equity in their jointly-owned residence and granted him exclusive possession f…
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FRANK D. UPCHURCH, Jr., Judge.
Appellant appeals from a judgment of dissolution of marriage contending the trial court erred in awarding appellee a special equity in the parties’ residence and granting him the right to exclusive possession of the residence for an indeterminate period.
We affirm as to the special equity. The testimony of the parties was taken on different days. When husband testified, no one had arranged for a reporter, but the parties proceeded without preserving the record. While appellant convincingly argues her position and the authorities supporting it, we have no way to review the basis for the trial court’s decision. Appellee correctly contends that appellant must overcome the presumption of correctness the judgment carries by making reversible error clearly appear on the record and notes the responsibility is on appellant to bring to the court a trial record containing every phase of the trial proceeding that must necessarily be considered to find prejudicial error. See Greene v. Hoiriis, 103 So. 2d 226 (Fla. 3d DCA 1958) and Rule 9.200, Florida Rules of Appellate Procedure.1 In Damkohler v. Damkohler, 336 So. 2d 1243 (Fla. 4th DCA 1976), the court stated:
Where an appellant challenges the sufficiency of the evidence, he has the burden of bringing before this Court a complete record of the proceedings below. In the absence of such a record, we must presume that there was sufficient evidence and testimony presented to the Trial Court to support its findings of fact.
The second point raised is whether the trial court erred in awarding the husband exclusive possession of the marital residence owned by the parties after the divorce as tenants in common.
The trial court found that there were no children, there was no need for alimony, and the financial ability was such that each could pay their own attorney fees. No reasons were given which would justify a grant of exclusive possession of the jointly owned residence.
“An award of exclusive use of property must be determined by the equity of the cause and should be for a specified period.” Duncan v. Duncan, 379 So. 2d 949, 952 (Fla.1980). See also Richardson v. Richardson, 315 So. 2d 513 (Fla. 4th DCA 1975); Dwyer v. Dwyer, 305 So. 2d 10 (Fla. 1st DCA 1974). The husband argues that exclusive possession is necessary to prevent a reduction in the value of the property. Under appropriate circumstances this argument would prevail, but not for an indefinite period. We are also hampered here by the incomplete record to determine if there was justification for excluding appellant from the property.
We must therefore remand to the trial court to determine the period of exclusive possession and if the reasons for such still exists. Nothing appears in the record which would justify a denial of partition of the property if proper pleadings are presented to the trial court.
AFFIRMED in part and REMANDED in part.
SHARP and COWART, JJ., concur. . Rule 9.200(e), Florida Rules of Appellate Procedure, states:
The burden to insure that the record is prepared and transmitted in accordance with these rules shall be on the petitioner or appellant. Any party may enforce the provisions of this rule by a motion.
Cases With Similar Vibessemantic neighbors from the corpus
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Tuttle v. Miami Dolphins, Ltd., 551 So. 2d 477 (Fla. 3d DCA 1988)…e burden of showing error in an appellate court is the appellant’s. E.g., Applegate v. Barnett Bank, 377 So. 2d 1150 (Fla.1979); Manis v. Prudhomme, 278 So. 2d 292 (Fla. 4th DCA 1973). The error claimed must be shown in the record. Firkel v. Firkel, 391 So. 2d 351 (Fla. 5th DCA 1980); Lyons v. Town of Lake Park, 153 So. 2d 21 (Fla. 2d DCA 1963); Amphicar Corp. v. Gregstad Distributing Corp., 138 So. 2d 383 (Fla. 3d DCA 1962); Broward County Port Authority v. F.M. Rule & Co., 119 So. 2d 82 (Fla. 2d DCA 1960).…1 / 2
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Warren v. Warren, 480 So. 2d 707 (Fla. 5th DCA 1986)…, or for what purpose. We therefore remand this issue for hearing before a trial judge, to set an appropriate period of exclusive possession and to determine if such reasons for exclusive use still exist. Duncan, 379 So. 2d at 952; Firkel v. Firkel, 391 So. 2d 351, 352 (Fla. 5th DCA 1980). This award of exclusive use to appellee of the marital home should be viewed in the context of the other awards in the judgment, which we are affirming. AFFIRMED IN PART AND REMANDED. SHARP and COWART, JJ., and BAKER, J.P…
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Turner v. Walvick, 666 So. 2d 971 (Fla. 5th DCA 1996)…RIAM. Jeffrey Turner appeals from the amended final judgment awarding primary residential care of his daughter to her maternal grandmother. We are constrained to affirm because of the lack of a transcript of the final hearing. See Firkel v. Firkel, 391 So. 2d 351, 351-52 (Fla. 5th DCA 1980) (citations omitted). The lower court found it would be detrimental to the child to be in the father’s custody. We agree with appellant that this finding must be supported by clear and convincing evidence to be sustained…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Duncan v. Duncan, 379 So. 2d 949 (Fla. 1980)
- NIX v. Lake W. Koontz, 103 So. 2d 226 (Fla. 2d DCA 1958)
- Damkohler v. Heidi Damkohler (Pollmann), 336 So. 2d 1243 (Fla. 4th DCA 1976)
- Luvenia F. Richardson v. Richardson, 315 So. 2d 513 (Fla. 4th DCA 1975)
- Dwyer v. Dwyer, 305 So. 2d 10 (Fla. 1st DCA 1974)