RICHARD MARKS, APPELLANT,
v.
MARY MARKS, APPELLEE
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A property settlement provision requiring mortgage payments in a divorce judgment is not enforceable by contempt, so the contempt order was reversed.
A property settlement provision in a divorce judgment requiring one party to pay mortgage payments on the marital home is not enforceable by contempt.
[1] Property settlement provisions in divorce judgments are not enforceable through contempt proceedings.
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Join FLexlaw to unlock all legal intelligenceRichard Marks and Mary Marks divorced by stipulated judgment. The judgment required Marks to pay mortgage payments on their marital home until sale an…
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BARFIELD, Judge.
Richard Marks appeals that portion of an order of contempt that requires him to pay certain mortgage payments or be imprisoned. The final judgment of dissolution of marriage provides in part:
The parties agree to sell the marital home of the parties located at 4740 Anchor Lane, Pensacola, Florida, by listing it with Reed-Reed Realtors, and they shall equally divided the proceeds of the said sale. The respondent shall be responsible for the mortgage payments on the said marital home from the date of the foregoing judgment until such time the said marital home is sold, and the respondent shall receive credit for these mortgage payments by recovering from the net sale proceeds a percentage of the net sale proceeds based on the number of mortgage payments he paid after the divorce as compared to the number of mortgage payments paid during the time the parties were married.
All terms of the judgment were the result of a stipulation between the parties. Alimony and child support were provided in other parts of the judgment unrelated to the quoted provisions concerning property. The appellant has not challenged the contempt order as it relates to child support, alimony, attorney fees and costs.
The above quoted provision of the final judgment is solely in the nature of a property settlement and is not enforceable by contempt. Ball v. Ball, 440 So. 2d 677 (Fla. 1st DCA 1983); Schminkey v. Schminkey, 400 So. 2d 121 (Fla. 4th DCA 1981); Carlin v. Carlin, 310 So. 2d 403 (Fla. 4th DCA 1975); Corbin v. Etheridge, 296 So. 2d 59 (Fla. 1st DCA 1974).
REVERSED.
WIGGINTON, J., concurs.
JOANOS, J., concurs specially with opinion.
JOANOS, Judge,
specially concurring.
I concur in the result reached by the majority because the cases cited dictate that result. However, I wish to note my uneasy feeling in reversing the trial judge on what appears to have been a most reasonable decision on his part. Further, I wish to point out my concern with the case law that has developed that treats “provisions concerning property” in a dissolution judgment as being unrelated to provisions for child support and alimony. To limit the trial judge’s ability to protect the needs of the former spouse and children in this fashion seems to seriously hamper that judge’s ability to do justice. A parent and children receiving what has been labeled as alimony and child support are still going to be in a bad way if the home payments are not made.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hobbs v. Hobbs, 518 So. 2d 439 (Fla. 1st DCA 1988)…husband’s attorney’s fees and costs in an unrelated criminal case. We agree with the husband that he cannot be imprisoned for failure to pay a third party a joint debt incurred by the husband and wife. The instant case is similar to Marks v. Marks, 457 So. 2d 1137 (Fla. 1st DCA 1984), wherein this court reversed a finding of contempt entered against a husband who had refused to obey a provision of the final judgment ordering him to make mortgage payments pending the sale of the marital home. The court in Mark…
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Porter v. Porter, 521 So. 2d 290 (Fla. 1st DCA 1988)…peal on the ground that such a ruling is premature at this juncture, prior to a clear showing that appellant’s duty to pay is a support obligation, as opposed to a property settlement [*292] which is not- enforceable by contempt. See Marks v. Marks, 457 So. 2d 1137 (Fla. 1st DCA 1984). Although the trial judge specifically found the monthly payments to be “alimony,” indicating a support obligation, the record on appeal is insufficient to show an obligation enforceable by contempt. Affirmed but remanded -with…
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Rodger G. Meadows v. Bacon, 489 So. 2d 850 (Fla. 5th DCA 1986)…CA 1982), but it is also substantively defective in that it purports to use the contempt power of the court to compel the husband to pay a debt due to a third party. See State ex rel. Cahn v. Mason, 148 Fla. 264, 4 So. 2d 255 (1941); Marks v. Marks, 457 So. 2d 1137 (Fla. 1st DCA 1984); Schminkey v. Schminkey, 400 So. 2d 121 (Fla. 4th DCA 1981). Nothing in the property settlement agreement incorporated into the final judgment indicates that the provision requiring the payment of this indebtedness is anything ot…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Schminkey v. Schminkey, 400 So. 2d 121 (Fla. 4th DCA 1981)
- Ball v. Ball, 440 So. 2d 677 (Fla. 1st DCA 1983)
- Carlin v. Stan Carlin, 310 So. 2d 403 (Fla. 4th DCA 1975)
- McLEMORE v. State, 296 So. 2d 59 (Fla. 1st DCA 1974)
- Corbin v. Etheridge, 296 So. 2d 59 (Fla. 1st DCA 1974)