JOHN F. MESSAL, APPELLANT,
v.
SHARON E. MESSAL, APPELLEE
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In a dissolution of marriage case, the appellate court reversed the trial court's award of exclusive use and occupancy of the marital home to the wife without provision for termination upon remarriage, and found abuse of discretion in the financial obligations imposed on the husband, which left him with less than $23 per week for self-support and were based on outdated earnings data.
The trial court erred in awarding exclusive use and occupancy of the marital home without provision for termination upon the wife's remarriage; abused its discretion in imposing financial obligations based on the husband's 1981 earnings rather than current earnings; and miscalculated the child support obligation due to misinterpretation of whether the children's expenses figure included house payments.
[1] A trial court abuses its discretion by awarding exclusive use and occupancy of the marital home to a spouse for the benefit of minor children without a provision for term…
[2] A trial court abuses its discretion by imposing financial obligations on a party based on outdated income information when current, uncontroverted evidence of reduced ear…
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Join FLexlaw to unlock all legal intelligence“we find error in the award of the exclusive use and occupancy of the marital home to the wife, for the benefit of the minor children, without provision for termination in event of the wife's remarriage”
Establishes the primary error regarding the marital home award lacking remarriage termination clause
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Join FLexlaw to unlock all legal intelligenceThe trial court awarded the wife exclusive use and occupancy of the marital home for the benefit of minor children (ages 2 and 11) without termination…
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PER CURIAM.
On this appeal from a final judgment in a dissolution of marriage case, we find error in the award of the exclusive use and occupancy of the marital home to the wife, for the benefit of the minor children, without provision for termination in event of the wife’s remarriage. Lambert v. Lambert, 403 So. 2d 484 (Fla. 1st DCA 1981).
We agree with appellant also that an abuse of discretion has been shown in the financial obligations imposed upon the husband by the final judgment, under which he will be left with less than $23.00 per week upon which to support himself. It appears that the trial court relied upon the husband’s 1981 earnings, despite the husband’s uncontroverted testimony that his higher income for that period (which included certain bonuses which had been discontinued) was no longer reflective of his current earnings.
We note also some confusion with respect to the evidence supporting the award of $658.92 per month for child support. In her financial affidavit, the wife listed the children’s expenses at $1,025.00 per month. This figure included $315.78, representing two-thirds of the mortgage payment on the house, not including taxes and interest. The total house payment, including taxes and interest, amounted to $572.00 per month. The transcript indicates that the trial court was under the impression that the figure given as representing the children’s living expenses did not include an amount attributable to the house payments, and the judgment includes a separate provision requiring the husband to pay one-half of the mortgage payments, taxes and insurance on the home mortgage. Both parties, being gainfully employed, were properly considered as being required to share child support expenses. However, the misinterpretation of the evidence regarding the children’s expenses resulted in a miscalculation of the husband’s proportionate child support obligation. This issue appears to have been raised during the proceedings sufficiently to afford appellate review. We note, however, that although appellant filed a motion for rehearing, the motion fails to mention this error or miscalculation, so that the trial judge has not been given an oppor tunity to make such correction in the child support payment as might be indicated.
We find no error in the consideration of expenses for electricity, gas, and telephone as a portion of the children’s living expenses. While it can be said that the telephone is not a necessity for the two year old and eleven year old children for their own use, it is obvious that the telephone is a convenience which the wife will use in their behalf.
The judgment is REVERSED and the cause is remanded for redetermination of the husband’s financial obligations based upon the evidence of his current earnings, and with due consideration to the evidence with respect to the children’s living expenses, and for revision of the final judgment so as to provide for termination of the wife’s exclusive use and occupancy of the marital home upon her remarriage.
ERVIN; LARRY G. SMITH and SHIVERS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Kirkland v. Kirkland, 568 So. 2d 494 (Fla. 1st DCA 1990)…”). The trial court also erred in awarding the husband exclusive use of the home for the benefit of the minor child without providing for termination in the event of husband’s remarriage. We explicitly required such a provision in Messal v. Messal, 424 So. 2d 932 (Fla. 1st DCA 1983). “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.” Anderson v. Anderson, 424 So.…
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Mauricio A. Arze v. Soheila Sadough-Arze, 789 So. 2d 1141 (Fla. 4th DCA 2001)…vision for termination of exclusive use and possession when the minor child attains the age of eighteen, as well as a provision that the atuard may be terminated if the party in residence remarries. See Kirkland, 568 So. 2d at 496; Messal v. Messal, 424 So. 2d 932, 934 (Fla. 1st DCA 1983); White v. White, 413 So. 2d 132 (Fla. 1st DCA 1982); Savage v. Savage, 556 So. 2d 1213, 1214 (Fla. 2d DCA 1990); Harvey v. Harvey, 411 So. 2d 324, 325 (Fla. 5th DCA 1982). It is error to extend exclusive use and possession o…
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Todd v. Todd, 734 So. 2d 537 (Fla. 1st DCA 1999)…ovision for termination of exclusive use and possession when the minor child attains the age of eighteen, as well as a provision that the award may be terminated if the party in residence remarries. See Kirkland, 568 So. 2d at 496; Messal v. Messal, 424 So. 2d 932, 934 (Fla. 1st DCA 1983); White v. White, 413 So. 2d 132 (Fla. 1st DCA 1982); Savage v. Savage, 556 So. 2d 1213, 1214 (Fla. 2d DCA 1990); Harvey v. Harvey, 411 So. 2d 324, 325 (Fla. 5th DCA 1982). It is error to extend exclusive use and possession o…
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- Lambert v. Lambert, 403 So. 2d 484 (Fla. 1st DCA 1981)