TERESA TAWNEY POWELL, APPELLANT,
v.
JAMES EDWARD POWELL, APPELLEE

Fla. 1st DCA | 1991-01-29
No. 90-1557
BOOTH and MINER, JJ., concur.
580 So. 2d 620 Florida District Court of Appeal, First District (1991) Negative Treatment
Cited by 4 cases

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Synopsis

In this matrimonial dissolution appeal, the court affirmed the trial court's distribution of separately-owned assets and award of rehabilitative alimony, but reversed and remanded the conditional retention of jurisdiction over remaining personal property distribution because the trial court's language appeared to contain a drafting error regarding when jurisdiction should be retained.


Holding

The retention of jurisdiction was improper because there is no basis for retaining jurisdiction if the parties are able to agree on personal property distribution; the order should specify jurisdiction is retained should the parties fail to agree. The mortgage indemnification and alimony payment timing issues should be addressed on remand because the order is silent and ambiguous regarding these matters.


Headnotes

[1] A court's retention of jurisdiction over the distribution of personal property is improper if it is conditioned upon the parties reaching an agreement.

[2] A trial court must clearly delineate a proper basis for retaining jurisdiction over matters pending final resolution.

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Key Quotes

“Since there does not appear to be any basis for retaining jurisdiction if the parties are able to agree as to the distribution of personal property, we reverse the order in this regard and remand for the court to correct this apparent inadvertence, or otherwise delineate a proper basis for retaining jurisdiction.”

Establishes the core holding that the conditional retention of jurisdiction was improper and must be corrected on remand.

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Facts & Procedural History

The parties' marriage was dissolved and a separate hearing was held to address asset distribution, alimony claims, and related financial issues. The t…

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Opinion of the Court
WENTWORTH, Judge.

WENTWORTH, Judge.

Appellant seeks review of orders entered after the dissolution of the parties’ marriage, by which various items of property were distributed and appellant was awarded rehabilitative alimony. Appellee was required to contribute to appellant’s attorney’s fee, and the court conditionally retained jurisdiction as to the distribution of personal property. We find that the manner in which the court retained jurisdiction was improper, and the case must be remanded so that the court may readdress this and certain other matters.

The parties’ marriage was dissolved and a separate hearing was thereafter held addressing the distribution of assets, appellant’s claim for alimony, and related financial issues. After the hearing was concluded the court entered an order awarding appellee various assets which could be traced to appellee’s separate ownership pri-or to the parties’ marriage. We find that appellant has failed to demonstrate any error with regard to the distribution of these assets. However, the court also acknowledged the parties’ intent to resolve between themselves the distribution of the remaining items of personal property, expressly providing in the order that jurisdiction is retained as to this matter “should the parties come to an agreement.” On appeal the parties both assert that the court intended to retain jurisdiction should the parties not come to an agreement, but that the word “not” was inadvertently omitted from the order. Since there does not appear to be any basis for retaining jurisdiction if the parties are able to agree as to the distribution of personal property, we reverse the order in this regard and remand for the court to correct this apparent inadvertence, or otherwise delineate a proper basis for retaining jurisdiction.

Appellant also contends that appel-lee should have been required to hold her “harmless” as to the mortgage obligation on the marital home which was awarded to appellee. Documents in the record before this court suggest that appellee cosigned on the mortgage and would remain liable to the mortgagor. While any indemnification as between the parties is a matter within the ambit of the court’s discretion regarding the distribution of assets, since the order is silent and therefore ambiguous in this regard the court should address the matter on remand.

Appellant further contends that the award of rehabilitative alimony, which was made payable either as a lump sum or in monthly installments, should have specified a time for payment. Fla.R.Civ.P. 1.570(c)(1) indicates that the judgment should specify “the time within which the act shall be performed.” We would construe the order as requiring that appellee’s performance of this obligation commence upon entry of the order, as appellee concedes on appeal. However, should the court desire it may also address this matter on remand.

The order appealed is reversed insofar as the court has retained jurisdiction should the parties agree regarding the distribution of personal property. The order is otherwise affirmed, and the cause remanded, subject to clarification as indicated herein.

BOOTH and MINER, JJ., concur.


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Citator

Cited By

  • …ake distribution to [the Beneficiaries] in accordance with the Trust.” If an order to perform an act does not specify the time for performance of the act, it is assumed that performance will be required upon issuance of the order. Powell v. Powell, 580 So. 2d 620, 621 (Fla. 1st DCA 1991) (stating that the court would construe an order awarding rehabilitative alimony as requiring payment of the obligation upon entry of the order). However, a party cannot be held in contempt for failing to immediately comply w…
  • Zivadin S. Krstic v. Gianna Milito Krstic, 604 So. 2d 1244 (Fla. 3d DCA 1992)
    …husband harmless on the obligation. Although the equitable relief granted to wife in this provision may have been intended as an incident of child support, we can find no basis for this particular open-ended form of relief. Compare Powell v. Powell, 580 So. 2d 620 (Fla. 1st DCA 1991) (trial court awarded wife marital home and ordered wife to pay mortgage obligation, while not ordering wife to hold husband harmless; on husband’s appeal, court held that indemnification as between parties was matter within court…

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