SCOTT KRANZ, APPELLANT,
v.
CARLA KRANZ, APPELLEE

Fla. 3d DCA | 1989-03-14
No. 89-149
Before SCHWARTZ, C.J., JORGENSON, J., and JOHN G. FERRIS, Associate Judge.
542 So. 2d 1011 Florida District Court of Appeal, Third District (1989) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Scott Kranz appeals a nonfinal order granting his estranged wife exclusive use and possession of their marital home during dissolution proceedings. The appellate court affirms, holding that the trial court properly adopted the master's recommendation based on the husband's own testimony establishing marital discord and the child's best interests.


Holding

The court affirmed the order, holding that the trial court properly adopted the master's findings, which were not clearly erroneous. The husband's own testimony established sufficient grounds for requiring him to absent himself from the marital home, and the temporary nature of the order prevented any abuse of discretion.


Headnotes

[1] A trial court may not substitute its judgment for that of a master when the master's findings are not clearly erroneous.

[2] An affirmative showing of intemperance, quarreling, or fighting between parties is a prerequisite to an order requiring one spouse to absent himself from the marital home…

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Key Quotes

“Once a trial court decides to appoint a master to hear testimony and make findings of fact, it loses the prerogative of substituting its judgment for that of the master's ... The master's findings cannot be overturned by the trial court unless the findings are clearly erroneous.”

Establishes the standard of review for a trial court's approval of a master's findings, requiring clear error for reversal.

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Facts & Procedural History

Scott Kranz's wife vacated the marital residence without notice, taking their four-and-one-half-year-old daughter and some business papers to Naples, …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Scott Kranz appeals from a nonfinal order granting his estranged wife exclusive use and possession of the marital home. We affirm. In December, 1988, the husband was served with a Petition for Dissolution of Marriage. The wife had vacated the marital residence without notice and had taken with her the parties’ four-and-one-half-year-old daughter and some of the husband’s business papers.1 The wife and child moved to Naples, Florida. The husband filed an Emergency Motion for Injunctive Relief seeking return of his property and visitation with his daughter. The motion was heard before a general master. At the hearing on his emergency motion, the husband testified that he realized his wife and child needed a place to live, and that he wished to share the three-story marital residence with them. However, he accused the wife of theft and marital misconduct. He suggested that he occupy the ground floor, and that his wife and child occupy the other two floors. The wife's counsel made an oral motion requesting the court to grant the wife exclusive use and possession of the marital residence.2

The general master recommended that the wife have exclusive use and possession of the house on the grounds that it was unlikely that the parties could peacefully live together and that it was in the child’s best interests to remain with her mother. The report stated that its provisions “shall not give to the wife any right to occupancy or ownership that she did not have prior to date hereof” and that the provisions “shall be without prejudice to be reconsidered ninety (90) days from entry of an Order approving same." The trial court approved the master’s report over the husband’s objection and adopted the master’s recommendations.

The trial court correctly approved and adopted the general master’s recommendations. “Once a trial court decides to appoint a master to hear testimony and make findings of fact, it loses the prerogative of substituting its judgment for that of the master’s ... The master’s findings cannot be overturned by the trial court unless the findings are clearly erroneous.” Bragassa v. Bragassa, 505 So. 2d 556, 558 (Fla. 3d DCA 1987) (cites omitted). Daniel v. Daniel, 236 So. 2d 197, 198 (Fla. 1st DCA 1970) stands for the proposition that an affirmative showing of “intemperance ... quarreling or fighting between the parties” is a prerequisite to an order requiring a husband to absent himself from the marital home. The husband made such a showing here by his own testimony.

Moreover, the record reflects that the husband has rented for himself an apartment at Plaza Venetia in Dade County; he also has a temporary residence in Dallas, Texas, where he spends approximately twenty days each month.

Given the husband’s testimony at the hearing and the temporary nature of the order, no abuse of discretion is shown.

AFFIRMED.

JORGENSON, J., and JOHN G. FERRIS, Associate Judge, concur. . The dispute over the business papers is not before this court.

. The residence is titled in the husband's name alone; it is unclear from the record whether the wife contributed to the purchase of the residence.

Dissent
SCHWARTZ, Chief Judge

SCHWARTZ, Chief Judge (dissenting).

As I read this record, the only basis for requiring the husband to move from his home pending the determination of the domestic litigation was the master’s generalized observation that the parties could likely not get along together in the same residence — an observation which is almost by definition true of every couple involved in a dissolution proceeding. Such a conclusion is insufficient as a matter of law to justify the granting of this relief, which is only available upon an affirmative showing of intemperance ... quarreling or fighting between the parties, or [an] adverse effect upon the children.

Daniel v. Daniel, 236 So. 2d 197, 198 (Fla. 1st DCA 1970). As Daniel makes clear, neither spouse should automatically be deprived of his or her emotional and property interest in the common residence at the commencement of the case merely because of the existence of the dispute itself; to do otherwise is to pre-judge the case by de priving a litigant of valuable interests before any determination of the merits. At the very least, ouster should not occur without a demonstration that an ordinary injunction for each party to refrain from molesting the other while continuing to reside in the same home has been attempted and been found inadequate to meet the situation.1 Since this was not even attempted below and in the absence of facts which permit, let alone justify, the order below, I must dissent.

. Because the Kranzes’ residence is a large three-level home which would lend itself to one spouse living on a separate floor from the other, there is all the more reason to believe that this remedy might be effective.


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Citator

Cited By

  • Eugenio J. Amador v. Amador, 728 So. 2d 1209 (Fla. 3d DCA 1999)
    …matrimonial action. After review of the trial court’s remarks at the conclusion of the transcript, this court is in doubt about whether the trial court determined that the circumstances of this case rise to the level contemplated by Kranz v. Kranz, 542 So. 2d 1011, 1012 (Fla. 3d DCA 1989). We vacate the order and remand for consideration in light of Kranz.…

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