MARTINA SCHEIN, APPELLANT,
v.
THOMAS FRED SCHEIN, APPELLEE
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In this divorce appeal, the wife challenged the trial court's award of primary custody to the husband, exclusive possession of the marital residence to the husband, and denial of a special equity in certain funds. The appellate court affirmed the custody and asset distribution decisions but reversed the exclusive possession award, requiring the husband to pay rent for occupying the marital residence.
The court affirmed the custody award and asset distribution as supported by the record and within the trial court's discretion. However, the court reversed the exclusive possession award, holding that the husband must pay rent for his occupancy of the marital residence during the exclusive possession period, and remanded for determination of the rental amount and for amendment requiring partition upon remarriage.
[1] A trial court's award of primary custody is affirmed when supported by substantial competent evidence demonstrating that the custody arrangement serves the best interests…
[2] A trial court's equitable distribution of marital assets will not be disturbed on appeal absent an abuse of discretion.
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Join FLexlaw to unlock all legal intelligence“the record reveals substantial competent evidence in support of the trial court's decision that the best interests of the children were served by placing them in the father's custody”
Establishes the standard of review for custody decisions and the basis for affirming the custody award
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Join FLexlaw to unlock all legal intelligenceThe parties were divorcing and disputed custody of their children, possession of the marital residence (two Key Biscayne condominiums—one owned as ten…
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BASKIN, Judge.
In this appeal from a Final Judgment Dissolving Marriage, the wife challenges: the trial court’s award of primary custody of the children to the husband; the trial court’s award of exclusive possession of the marital residence to the husband; and the trial court’s refusal to award her a special equity in funds brought into this country in her name, but determined by the court to belong to the husband. The husband appeals the amount of permanent alimony awarded to the wife.
Concerning the question of custody, we find that the record reveals substantial competent evidence in support of the trial court’s decision that the best interests of the children were served by placing them in the father’s custody. We therefore affirm on this point. Dinkel v. Dinkel, 322 So. 2d 22 (Fla.1975).
Regarding the trial court’s denial of a special equity, we hold that the trial court’s award to the wife of lump sum alimony of $25,000 and permanent alimony of $2,500 a month is supported by the record and will not be disturbed on appeal. Shaw v. Shaw, 334 So. 2d 13 (Fla.1976). The trial court’s plan to conduct an equitable distribution of marital assets may not be disturbed in the absence of a demonstration of abuse of discretion. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). Examining the wife’s claim to a special equity in light of the total distribution, we find no merit in her position. Accordingly, we affirm the trial court’s distribution of the assets of the parties.
The next challenge is to the award of exclusive possession of the marital residence to the husband. The marital residence consisted of two Key Biscayne condominiums joined into a single residence. During the marriage the parties owned one unit as tenants by the entireties; the husband was sole owner of the other unit. In the final judgment the trial court awarded the husband exclusive possession of the entire residence until the children attain majority, but declared the parties to be tenants in common of the unit they formerly owned by the entireties, requiring the husband to pay the mortgage. The wife asserts that, absent a finding of a duty on her part to support the children, the court erred in awarding the husband rent-free possession of the marital residence. We agree and remand the cause for a determination of the amount of rent to be paid by the husband during the period of his exclusive occupancy. Cf. Duncan v. Duncan, 379 So. 2d 949 (Fla.1980). In addition, the final judgment should be amended to require partition of the residence upon the husband’s remarriage, as he conceded to be appropriate.
Affirmed in part; reversed in part; remanded with directions.
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Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990)…restructured division of assets and allocation of monthly income, should reconsider the matter of attorney’s fees. REVERSED AND REMANDED. SHIVERS, C.J., concurs. JOANOS, J., concurs and dissents with written opinion. . But cf. Schein v. Schein, 448 So. 2d 16 (Fla. 3d DCA 1984) (absent finding of duty on the wife’s part to support the children, the trial court erred in awarding husband, who had custody of children, rent-free exclusive possession of marital home); Kuvin v. Kuvin, 442 So. 2d 203 (Fla. 1983…
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Cabrera v. Cabrera, 484 So. 2d 1338 (Fla. 3d DCA 1986)…not awarded to custodial parent of minor children where $20,000 awarded wife from husband’s share of proceeds of ordered sale of house plus her share of proceeds would permit her to find suitable housing for herself and children); Schein v. Schein, 448 So. 2d 16 (Fla. 3d DCA 1984)(absent finding of duty on wife’s part to support children, court erred in awarding husband, who had custody of children, rent-free exclusive possession of marital home). [*1340] Of particular interest is the decision in Florence.…
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Weisfeld v. Weisfeld, 513 So. 2d 1278 (Fla. 3d DCA 1987)…o pay support or temporarily necessary to protect the value of the property. Duncan v. Duncan, 379 So. 2d 949, 952 (Fla.1980); Cone v. Cone, 449 So. 2d 867, 869 (Fla. 5th DCA 1984); see Taylor v. Taylor, 381 So. 2d 1353 (Fla.1980); Schein v. Schein, 448 So. 2d 16 (Fla. 3d DCA 1984). Although the special purpose requirement is obviously satisfied in the instant case, the award of exclusive possession of the parties’ marital home to Mr. Weisfeld is not directly connected to any support obligation. Mrs. Weisfel…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976)
- Duncan v. Duncan, 379 So. 2d 949 (Fla. 1980)
- Dinkel v. Dinkel, 322 So. 2d 22 (Fla. 1975)