JACQUELINE GORDON, APPELLANT,
v.
ALAN GORDON, APPELLEE
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In a dissolution of marriage case, the trial court issued a nonfinal order directing the parties to immediately list their marital home for sale. The appellate court reversed, holding that because the final disposition of the marital home was neither pleaded, noticed for hearing, nor litigated by the parties, it was not a proper issue for the court's determination.
The court reversed the order directing the listing of the marital home for sale, holding that an issue not framed by the pleadings, noticed for hearing, or litigated by the parties is not a proper issue for the court's determination.
[1] A court may not order the final disposition of a marital home in a dissolution of marriage action through a nonfinal order.
[2] A court cannot determine an issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties.
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Join FLexlaw to unlock all legal intelligence“An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties is not a proper issue for the court's determination.”
Establishes the core legal principle upon which the reversal is based regarding the trial court's authority.
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Join FLexlaw to unlock all legal intelligenceJacqueline and Alan Gordon were married for thirty-five years with four adult children. They owned both a marital home (where the wife resided) and a …
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CAMPBELL, Chief Judge.
Appellant/wife attacks the nonfinal order that directed the parties immediately to list their marital home with a realtor for the purpose of sale. We reverse.
This appeal concerns the disposition of the marital home of the parties by a nonfinal order in a dissolution of marriage action. The parties own the marital home and a condominium. The wife has remained in the marital home and the husband has the condominium as his primary place of residence. The parties have been married thirty-five years and their four children have all reached majority. Upon leaving the marital home, the husband filed for dissolution of marriage requesting that after a determination of the respective interests of the parties the marital home be partitioned and sold. The wife filed a coun-terpetition in which she requested that the marital home be awarded to her as lump sum alimony. Temporary orders for support and alimony were entered in which, among other things, the husband was ordered to make and keep current the mortgage payments on the marital home. On March 16, 1988, the husband filed a “Motion for Reduction or Termination of Temporary Support.” The wife had previously filed a motion for an increase in temporary support. Both motions were noticed to be heard on March 16, 1988, the day the husband’s motion was filed. Neither of the parties’ motions nor the notices for hearing on the motions gave notice that the court would consider a final disposition of the marital home.
An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties is not a proper issue for the court’s determination. Cortina v. Cortina, 98 So. 2d 334 (Fla.1957); State, Department of Health and Rehabilitative Services, Office of Child Support Enforcement v. McNabb, 501 So. 2d 709 (Fla. 2d DCA 1987); Hart v. Hart, 458 So. 2d 815 (Fla. 4th DCA 1984); Fickle v. Adkins, 394 So. 2d 461 (Fla. 3d DCA 1981).
That portion of the nonfinal order directing the listing of the parties’ marital home for sale is hereby reversed and this case is remanded for further proceedings.
Reversed and remanded.
LEHAN and ALTENBERND, JJ., concur.
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Bortell v. White Mountains Ins. Grp., Ltd., 2 So. 3d 1041 (Fla. 4th DCA 2009)…all, Inc., 843 So. 2d 992, 993 (Fla. 4th DCA 2003) (“ ‘An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties’ is not an appropriate matter for a trial court’s determination.”) (quoting Gordon v. Gordon, 543 So. 2d 428, 429 (Fla. 2d DCA 1989)). Nevertheless, we affirm the trial court’s order for the reasons set forth in the motions to dismiss. Count one sought to assert a statutory cause of action under section 624.155(2), Florida Statutes.1 Each side agrees that…
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Johnson v. Deutsche Bank Tr. Co., 248 So. 3d 1205 (Fla. 2d DCA 2018)
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Boca Golf View, Ltd. v. Hughes Hall, Inc., 843 So. 2d 992 (Fla. 4th DCA 2003)…an affirmative defense that should have been specifically pled). “An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties” is not an appropriate matter for a trial court’s determination. Gordon v. Gordon, 543 So. 2d 428, 429 (Fla. 2d DCA 1989); see also Fla. Atl. Marine, Inc. v. Seminole Boatyard, Inc., 630 So. 2d 219, 220-21 (Fla. 4th DCA 1993). The trial court erred when it relied on a defense not raised by the pleadings to grant the motion for involuntary dismis…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)
- Hart v. Hart, 458 So. 2d 815 (Fla. 4th DCA 1984)
- Allstate Ins. Co. v. Anderson, 394 So. 2d 461 (Fla. 3d DCA 1981)
- Fickle v. Adkins, 394 So. 2d 461 (Fla. 3d DCA 1981)
- State v. McNABB, 501 So. 2d 709 (Fla. 2d DCA 1987)