LOVISE C. WILKINSON, APPELLANT,
v.
MARCUS A. WILKINSON, III, APPELLEE
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In this second appeal of a marital property dispute, the Florida District Court of Appeal reversed the trial court's calculation of the wife's equitable interest in the marital home, holding that her right to sole possession terminated on November 30, 1976, rather than December 20, 1973, based on the original 1966 stipulation between the parties.
The wife's right to sole possession terminated on November 30, 1976, not December 20, 1973. The trial court's calculation should be based on this November 1976 date rather than the custody award date, because the court properly should have considered whether the wife was still providing a home for the son after November 1976.
[1] A trial court must strictly follow an appellate court's mandate and cannot alter it without permission.
[2] A trial court exceeds the scope of a mandate when it takes action beyond the specific instructions provided by the appellate court.
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Join FLexlaw to unlock all legal intelligence“husband must pay to wife one-half the amount by which the fair market value of the home exceeded the principal balance of the mortgage on the date that wife's right to sole possession terminated permanently”
Establishes the fundamental formula for calculating the wife's equitable interest in the marital home based on the 1966 stipulation
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Join FLexlaw to unlock all legal intelligenceThe parties executed a 1966 stipulation regarding division of the marital home's equity. In the first appeal, this court instructed the trial court to…
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PER CURIAM.
When this protracted litigation was last before our court in Wilkinson v. Wilkinson, 403 So. 2d 1008 (Fla. 2d DCA 1981), we held:
The order is REVERSED with instructions to the trial court to enter an order in conformity with the 1966 stipulation of the parties, viz., husband must pay to wife one-half the amount by which the fair market value of the home exceeded the principal balance of the mortgage on the date that wife’s right to sole possession terminated permanently.2 Against that obligation, the husband shall have credit for only two items: (1) half the sum by which the amount he paid for repairs exceeds the amount wife paid for repairs, and (2) the reasonable rental value of the premises for the period, if any, wife continued in possession after her right to do so had terminated.
403 So. 2d at 1009-10. At the hearing following remand, the husband successfully contended that because custody of the par ties’ last son had been awarded to him on December 20, 1973, the wife’s right to sole possession of the home terminated permanently on that date. The court deemed irrelevant the fact that custody was thereafter reawarded to the wife and that the son physically moved his residence back and forth between the homes of the parties several times during the pertinent period.
We need not decide whether the court properly interpreted the original stipulation. Because of the posture of the case at the time and the position taken by the husband in prior proceedings, our reference in footnote 2 to the need to determine whether the wife was providing a home for the son after November, 1976, was advisably made. Consequently, the court’s ruling went beyond our instructions. We will, however, give the husband the benefit of the court’s findings to the extent that they are within the scope of the remand.
We reverse the order with directions to enter a new order containing computations predicated upon the determination that the wife’s right to sole possession of the home terminated permanently on November 30, 1976.
OTT, C.J., and BOARDMAN and GRIMES, JJ., concur. At a hearing in 1977 husband asserted that his son, who did not become eighteen until April 13, 1977, had left the home in November of 1976. The trial court is better situated than we to determine from whatever evidence is presented whether wife was still providing a home after November, 1976, for the son, whose absence may have been thought to be only temporary.