RICHARD A. SENCY, APPELLANT,
v.
CAROL ANN SENCY, APPELLEE
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In this dissolution dispute, an ex-husband challenged a trial court's decision not to terminate his ex-wife's exclusive possession of the marital home after she violated a court order prohibiting unrelated adult males from residing there. The Fifth District affirmed the trial court's refusal to terminate exclusive possession but reversed its conditioning of enforcement of the non-residency provision on the husband's payment of arrearages.
The court affirmed that exclusive possession should not be terminated because it constitutes child support in kind benefiting the children of the marriage, and the ex-husband's payment obligations similarly relate to child support and should not be eliminated due to the wife's breach. However, the court reversed the trial court's conditioning of the non-residency prohibition's enforcement on the husband's payment performance; all aspects of the final judgment should be enforced according to their terms.
[1] A party seeking to enforce a final judgment's provisions cannot forgo that remedy, allow time to pass, and then claim relief from their own obligations under the judgment…
[2] Exclusive possession of a marital home awarded to a former spouse and children constitutes an aspect of child support in kind and potentially alimony.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Two wrongs do not make a right. The husband's remedy for the wife's breach of the final judgment was to have the court enforce the final judgment.”
Establishes that the ex-husband's proper remedy was court enforcement, not self-help remedies like refusing his own payment obligations.
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Join FLexlaw to unlock all legal intelligenceIn a 1980 dissolution judgment, the ex-wife received custody of the children and exclusive possession of the marital home until the children turned 18…
The full statement of facts, procedural history, and disposition for this case are member content.
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COWART, Judge.
This case involves the problem resulting from an ex-wife violating a prohibition against having an unrelated adult male live in an ex-marital home, the exclusive possession of which had been awarded to the wife and the children.
In a 1980 dissolution judgment the wife was given custody of the children and exclusive possession of the jointly titled marital home until the children reached 18 years of age or until the wife ceased using the home as the primary residence for herself and at least one of the two children. The judgment also provided: “No male over the age of 18 years not related by blood or marriage to the [wife] can live in said residence.” In addition to periodic monetary child support the husband was ordered to pay one-half of the mortgage payments, taxes and insurance on the former marital home.
In February, 1984, the ex-husband filed a petition alleging that the ex-wife had violated the prohibition against an unrelated adult male resident and requested a finding of contempt, a termination of exclusive possession and an order relieving the ex-husband of the obligations to pay mortgage payments, taxes and insurance and crediting him for such sums paid during the period of the wife’s violation of the final judgment. The wife answered admitting an unrelated male adult resided in the former marital home and counterclaimed for an order directing the ex-husband to pay an accumulated arrearage on the mortgage, tax and insurance payments.
It was established at hearing that the unrelated adult male had lived in the former marital home since about June, 1981. The trial judge ordered the husband to pay the arrearages in the house related payments in three consecutive monthly installments and provided that the unrelated male was to vacate the house after the ex-husband paid one-third of the arrearage. The husband appeals and argues that the trial judge should have terminated the wife’s exclusive possession and that he should have been relieved of the obligation to make the house related payments during the period the wife was in violation of the prohibition against a resident non-related adult male. We affirm.
Two wrongs do not make a right. The husband’s remedy for the wife’s breach of the final judgment was to have the court enforce the final judgment. He cannot forego that proper remedy, let time pass, and then insist that he should not obey the final judgment as to the house related payments. Exclusive possession given an ex-spouse and children of a marriage always constitutes an aspect of child support in kind and sometimes also constitutes an aspect of alimony. The requirement that the husband make the house related payments similarly relates to child support and, perhaps, spousal support. To the extent that these payments and exclusive possession were for the benefit of the children of the marriage they should not have been terminated because of the wife’s actions violating the final judgment. If the exclusive possession in this case had been solely for the ex-wife’s support, under the facts of this case the law would have provided the ex-husband a remedy other than specific enforcement of the non-residency provision. See Schneider v. Schneider, 467 So. 2d 465 (Fla. 5th DCA 1985); Bentzoni v. Bentzoni, 442 So. 2d 235 (Fla. 5th DCA 1983); Lambert v. Lambert, 403 So. 2d 484 (Fla. 1st DCA 1981); Abella-Fernandez v. Abella, 393 So. 2d 40 (Fla. 3d DCA 1981).
We approve the trial court not terminating the exclusive possession in this instance and ordering the husband to make the accumulated house related payments as originally ordered. However, the trial court should not have conditioned its enforcement of the prohibition against a non-related adult male resident on the husband’s performance of its order. All aspects of the final judgment should have been enforced according to its terms.
AFFIRMED in Part; REVERSED in Part.
COBB, C.J., and UPCHURCH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Berger v. Jacquie R. Berger, 559 So. 2d 737 (Fla. 5th DCA 1990)…correct. However, the exclusive possession award is sufficient to take the instant case out from under the dictates of Barrow. Exclusive possession in circumstances such as in the instant case constitutes an aspect of child support. Sency v. Sency, 478 So. 2d 432 (Fla. 5th DCA 1985) (“Exclusive possession given an ex-spouse and children of a marriage always constitutes an aspect of child support in kind and sometimes also constitutes an aspect of alimony.”) See also Wiggins v. Wiggins, 415 So. 2d 861 (Fla. 5…
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Richardson v. Leaman Richardson, 722 So. 2d 280 (Fla. 5th DCA 1998)…of court-ordered support, the co-owner out of possession may not claim rent even if he has been directed to pay his proportionate share of the property expenses) (citing Berger v. Berger, 559 So. 2d 737 (Fla. 5th DCA 1990)); see also Sency v. Sency, 478 So. 2d 432, 433 (Fla. 5th DCA 1985) (“Exclusive possession given an ex-spouse and children of a marriage always constitutes an aspect of child support in kind and sometimes also constitutes an aspect of alimony.”). Because the exclusive use of the home was an…
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Crouch v. Crouch, 898 So. 2d 177 (Fla. 5th DCA 2005)…e for upkeep of the sizea-ble home during the period of her occupancy which will benefit the former husband upon ultimate sale of the home. She urges that the best interests of the minor children should control. This Court stated in Sency v. Sency, 478 So. 2d 432, 433 (Fla. 5th DCA 1985), that “[e]xclusive possession given an ex-spouse and children of a marriage always constitutes an aspect of child support in kind and sometimes also constitutes an aspect of alimony.” See also Richardson v. Richardson, 722 S…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- W.L. Smith v. Dunning, 467 So. 2d 465 (Fla. 1st DCA 1985)
- Manuel E. Abella-Fernandez, M.D. v. Abella, 393 So. 2d 40 (Fla. 3d DCA 1981)
- Lambert v. Lambert, 403 So. 2d 484 (Fla. 1st DCA 1981)
- Singleton v. W. Volusia Hosp. Auth., 442 So. 2d 235 (Fla. 5th DCA 1983)
- Bentzoni v. Prudence Martin Bentzoni, 442 So. 2d 235 (Fla. 5th DCA 1983)