MARIA ISABEL PINEIRO, APPELLANT,
v.
FERNANDO L. PINEIRO, APPELLEE
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In this family law appeal, Maria Isabel Pineiro challenged a trial court's decision to order sale of the marital home to pay marital debts rather than award her exclusive possession as an incident of child custody. The appellate court affirmed the trial court's discretionary decision while remanding for modification of the tax deduction provisions.
The trial court did not abuse its discretion in ordering sale of the marital home given the parties' inadequate financial situation, despite the general principle that courts may award home possession to a custodial parent as an incident of child support. The trial court's award of income tax deductions was correct but required modification to include a contingency regarding the father's support payment status.
[1] A trial court does not abuse its discretion by ordering the sale of a marital home when the parties' combined income is insufficient to maintain the home and pay marital…
[2] Awarding exclusive use and possession of the marital home to a custodial parent is not an automatic right and may be denied when financial circumstances do not permit.
Previewing 2 of 4 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“we hold that the trial court did not abuse its discretion in declining to do so in this case, in view of the parties' finances”
Establishes the standard of review and the court's holding that discretion was not abused despite the general availability of home-possession awards to custodial parents
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Join FLexlaw to unlock all legal intelligenceMaria Isabel and Fernando Pineiro divorced; each earned approximately $2,400 monthly. The couple had two minor daughters and joint marital debt of app…
The full statement of facts, procedural history, and disposition for this case are member content.
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SHEVIN, Judge.
Maria Isabel Pineiro, the former wife, appeals a final judgment of dissolution of marriage and amendment thereto. We affirm the judgment as modified and remand with instructions.
The former wife petitioned for dissolution of her marriage to Fernando L. Pineiro [“former husband”]. The former wife requested primary residential custody of the parties’ two minor daughters and exclusive use and possession of the marital home until the younger daughter turns 18. The former husband agreed that the former wife should be awarded residential custody. However, he requested sale and partition of the marital home to pay marital debts.
The record demonstrates that each spouse earns approximately $2,400 monthly. The former husband pays $120 monthly for health insurance for the minor children, and the former wife pays $130 monthly for the younger daughter’s child care. The parties have depleted their savings to meet living and other expenses during the pendency of these proceedings. The joint debt, including the outstanding mortgage on the marital home, amounts to approximately $152,000. The expenses of maintaining the marital home amount to approximately $1,774 a month; payments on the marital debt amount to $792 monthly.
The trial court awarded the former wife primary residential custody of the children, and awarded both parents shared parental responsibility. The former husband was also ordered to pay monthly child support of approximately $740.
Unfortunately, the parties’ income is inadequate to meet their joint debts as well as the expenses of maintaining the marital home. In view of the parties’ financial situation, the court found that the parties could not afford to keep the marital home. Therefore, the court reluctantly ordered that the marital home be sold and that the proceeds be used to pay the marital debts. The court awarded each party an income tax deduction for one child, with each party enjoying the deduction in alternate years when the older daughter reaches the age of majority.
The former wife argues on appeal that the trial court erred in granting the former husband’s partition request, asserting that she should have been awarded possession of the marital home as an incident of child support. While such an award is not uncommon, Cabrera v. Cabrera, 484 So. 2d 1338 (Fla. 3d DCA 1986); Pino v. Pino, 418 So. 2d 311 (Fla. 3d DCA 1982), we hold that the trial court did not abuse its discretion in declining to do so in this case, in view of the parties’ finances. Kohn v. Kohn, 423 So. 2d 575 (Fla. 1st DCA 1982).
Additionally, we find no error in the court’s award of an income tax deduction for one daughter to each party, to be alternated yearly after the oldest daughter reaches majority. However, we remand with directions that the final judgment be corrected to provide that the former wife must execute the appropriate release under 26 U.S.C.A. § 152(e)(2)(West Supp.1996), contingent upon the former husband being current in his support payments. Ford v. Ford, 592 So. 2d 698 (Fla. 3d DCA 1991).
Affirmed as modified and remanded with instructions.
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Robertson v. Bretthauer, 712 So. 2d 1140 (Fla. 3d DCA 1998)…absolute power to allocate the exemption directly, it can require the custodial parent to transfer the exemption to the non-eustodial parent through the execution of a waiver. See Ford v. Ford, 592 So. 2d 698 (Fla. 3d DCA 1991); Pineiro v. Pineiro, 683 So. 2d 148 (Fla. 3d DCA 1996); Fenner v. Fenner, 599 So. 2d 1343 (Fla. 4th DCA), review denied, 613 So. 2d 3 (Fla.1992). However, the transfer of the dependency exemption to the non-custodial parent is conditioned on that parent being current with support pay…
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Gumberg v. Gumberg, 755 So. 2d 710 (Fla. 4th DCA 1999)…sively, but when “residential custody” is mentioned it is clearly referring to “primary residential custody”. See, e.g., Finney v. Giddens, 707 So. 2d 856 (Fla. 2d DCA 1998); Blosser v. Blosser, 707 So. 2d 778 (Fla. 2d DCA 1998); Pineiro v. Pineiro, 683 So. 2d 148 (Fla. 3d DCA 1996). In short, we cannot find any case which refers to a parent who has visitation rights as a “custodial parent.” Therefore, upon de novo review of the interpretation of this contractual provision, we hold that the term “residential…
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Tracie Coristine v. Coristine, 53 So. 3d 1204 (Fla. 5th DCA 2011)…2d 819, 820 (Fla. 4th DCA 1995). “Special circumstances” exist where the parties’ incomes are inadequate to meet their debts, obligations, and normal living expenses, as well as the expenses of maintaining the marital residence. Pineiro v. Pineiro, 683 So. 2d 148, 149 (Fla. 3d DCA 1996). In the instant case, the trial court succinctly addressed this issue in the final judgment: The Mother wants to keep the Home as a place to raise the children. The evidence shows the Home is a wonderful place for the Childr…1 / 2
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
- Cabrera v. Cabrera, 484 So. 2d 1338 (Fla. 3d DCA 1986)
- Pino v. Pino, 418 So. 2d 311 (Fla. 3d DCA 1982)
- Ford v. Ford, 592 So. 2d 698 (Fla. 3d DCA 1991)
- Kohn v. Emmett Lee Kohn, 423 So. 2d 575 (Fla. 1st DCA 1982)