DIANA LYNN BORNTRAEGER, APPELLANT,
v.
JOHN E. BORNTRAEGER, APPELLEE
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Wife appeals from a final judgment dissolving a 19-year marriage. The court reversed the trial court's order to sell the marital residence, finding the court lacked authority to partition jointly-owned property without an agreement or appropriate pleadings. The court remanded for reconsideration of the entire equitable distribution and alimony award.
The trial court lacked authority to order partition of the marital residence in the absence of a clear agreement between the parties or appropriate pleadings praying for partition. Accordingly, the order to sell the marital residence was reversed, and the entire equitable distribution must be reconsidered on remand.
[1] A court cannot order the partition of marital property in a dissolution of marriage proceeding if the pleadings are insufficient and there is no agreement between the par…
[2] A trial court must reconsider an alimony award when a prior basis for denying alimony is invalidated on appeal.
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Join FLexlaw to unlock all legal intelligence“the absence of an agreement of the parties or appropriate pleadings praying for partition, a chancellor has no authority either to partition jointly-owned property or effect what might amount to a property settlement between the parties”
Establishes the controlling legal rule that the trial court violated by ordering partition without agreement or appropriate pleadings
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Join FLexlaw to unlock all legal intelligenceDiana Lynn Borntraeger and John E. Borntraeger were married for nineteen years. The trial court issued a final judgment dissolving their marriage that…
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WIGGINTON, Judge.
The wife brings this appeal from the final and amended final judgments of the trial court dissolving their marriage of nineteen years. The wife raises several issues on appeal, but because we hold that the trial court erred in ordering the marital residence sold, we reverse the judgment of dissolution and remand for the trial court to revisit its entire plan of equitable distribution including alimony.
The general rule is that “ % the absence of an agreement of the parties or appropriate pleadings praying for partition, a chancellor has no authority either to partition jointly-owned property or effect what might amount to a property settlement between the parties..." Suhor v. Suhor, 341 So. 2d 277, 278 (Fla. 1st DCA 1977); O’Hara v. O’Hara, 327 So. 2d 242 (Fla. 1st DCA 1976); Coykendall v. Coykendall, 260 So. 2d 558 (Fla. 2d DCA 1972) (on rehearing); Rankin v. Rankin, 258 So. 2d 489 (Fla. 2d DCA 1972).
In the instant case, the pleadings did not reflect a prayer for partition, nor do we find in the record a clear agreement to that effect between the parties. Compare Bergh v. Bergh, 127 So. 2d 481, 487 (Fla. 1st DCA 1961), wherein the court alluded to the “voluntary agreement entered into between the parties with respect to a settlement of the interest which they owned and property accumulated during their marriage.” (Emphasis added.) Accordingly, since the parties did not clearly agree to such partition or division during the hearing, the trial court’s order to this extent must be reversed.
Accordingly, as noted earlier, in light of our reversal of the partition of the marital residence, we consider it necessary to reverse the entire division of properties set forth in the judgment of dissolution and remand the cause to the trial court for it to reconsider its plan of distribution including alimony with these following noted exceptions. We would agree with the husband that the trial court did not err as a matter of law in classifying the wife’s alimony as rehabilitative. We would also suggest that on remand the trial court be cognizant of the opinions in Pastore v. Pastore, 497 So. 2d 635 (Fla.1986) and Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla.1986) in considering both of the husband’s pension plans as either a marital asset for the purpose of establishing an equitable distribution of marital property or as a source of support obligation.
REVERSED and REMANDED for further proceedings consistent with this opinion.
BOOTH and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990)…solution proceedings, the court has no authority to partition jointly-held property in the absence of the parties’ agreement or a specific pleading requesting partition. Britt v. Britt, 552 So. 2d 323 (Fla. 1st DCA 1989); Borntraeger v. Borntraeger, 521 So. 2d 125 (Fla. 1st DCA 1987), rev. denied, 531 So. 2d 1352 (Fla. 1988); Zeller v. Zeller, supra. A general prayer for equitable division of the parties’ property in the petition for dissolution of marriage is not sufficient to justify partition of the partie…
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Sheffield v. Sheffield, 522 So. 2d 986 (Fla. 1st DCA 1988)…tribution heretofore fashioned by the trial judge is affected, we reverse the Final Judgment of Dissolution and remand for the trial court to revisit the entire issue of equitable distribution in this [*987] case. Compare Borntraeger v. Borntraeger, 521 So. 2d 125, (Fla. 1st DCA 1987). REVERSED AND REMANDED. BOOTH and ZEHMER, JJ., concur.…
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Louie E. Britt v. Britt, 552 So. 2d 323 (Fla. 1st DCA 1989)…rtition of the property was not sought or agreed to by the parties, and a court in a dissolution proceeding has no authority to partition jointly owned property absent an agreement of the parties or appropriate pleadings. Borntraeger v. Borntraeger, 521 So. 2d 125 (Fla. 1st DCA 1987) review denied 531 So. 2d 1352 (Fla.1988). A general prayer to equitably divide jointly held property does not constitute a prayer for partition. Cyphers v. Cyphers, 373 So. 2d 442 (Fla. 3d DCA 1979). The remaining issues are with…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Diffenderfer v. Diffenderfer, 491 So. 2d 265 (Fla. 1986)
- Pastore v. Pastore, 497 So. 2d 635 (Fla. 1986)
- Rankin v. Rankin, 258 So. 2d 489 (Fla. 2d DCA 1972)
- Bergh v. Bergh, 127 So. 2d 481 (Fla. 1st DCA 1961)
- Allie Pittman v. Mehaffey, 127 So. 2d 481 (Fla. 1st DCA 1961)
- O'Hara v. O'Hara, 327 So. 2d 242 (Fla. 1st DCA 1976)
- Coykendall v. Coykendall, 260 So. 2d 558 (Fla. 2d DCA 1972)
- Suhor v. Suhor, 341 So. 2d 277 (Fla. 1st DCA 1977)