KEN DAVIS, APPELLANT,
v.
PAM DAVIS, APPELLEE

Fla. 4th DCA | 1999-06-23
No. 99-0225
DELL and WARNER JJ., concur.
736 So. 2d 123 Florida District Court of Appeal, Fourth District (1999) Positive Treatment
Cited by 2 cases

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Synopsis

In this dissolution of marriage case, the Fourth District Court of Appeal reversed two temporary relief orders that transferred marital assets to the wife without requiring an injunction bond and without proper consideration of the husband's co-equal interest in the property. The court held that mandatory injunctive relief transferring marital assets requires compliance with bond requirements and cannot divest one party of their equal ownership interest.


Holding

The court reversed both orders on two grounds: (1) mandatory injunctive relief in a dissolution proceeding must be accompanied by an injunction bond as required by rule 1.610(b), and (2) even if the assets constitute marital property, transferring outright ownership to one party constitutes an abuse of discretion because it divests the other party of their equal interest in the marital property. The court distinguished this from orders providing spousal or child support and from temporary possession orders regarding the marital home.


Headnotes

[1] A temporary injunction in a dissolution of marriage proceeding requiring the transfer of property is improper without requiring the movant to furnish a bond.

[2] An order granting temporary injunctive relief in a dissolution of marriage case is improper if entered without sufficient notice to the opposing party.

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Key Quotes

“No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained ... if the adverse party is wrongfully enjoined.”

Establishes the mandatory bond requirement for temporary injunctions under Florida Rule of Civil Procedure 1.610(b)

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Facts & Procedural History

Ken Davis and Pam Davis were parties to a dissolution of marriage proceeding. In December, the trial court issued an order requiring the husband to tr…

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Opinion of the Court
FARMER, J.

FARMER, J.

We reverse two orders in the nature of temporary relief in this dissolution of marriage case.

As to the December 18th order, we reverse the mandatory injunctive relief provisions, requiring that the husband transfer to the wife the GE stock and all money and securities in the described bank accounts, on the grounds that this unique kind of temporary, injunctive relief in a dissolution proceeding is improper without also requiring that the wife furnish a bond as required by rule 1.610. See § 61.11(1), Fla. Stat. (1997) (“When either party is about to remove ... his or her property out of the state, or fraudulently convey or conceal it, the court may award a[n] ... injunction against the party ... and make such orders as will secure alimony ... to the party who should receive it.”); Fla.R.Civ.P. 1.610(b) (“No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained ... if the adverse party is wrongfully enjoined.”); Neal v. Neal, 636 So. 2d 810 (Fla. 1st DCA 1994); and Sandstrom v. Sandstrom, 565 So. 2d 914 (Fla. 4th DCA 1990). We distinguish the kind of injunction entered here with orders providing for support of a spouse or children.

As to the order of January 13th, requiring that husband transfer to the wife the SunTrust bank account, we reverse on the grounds that the order was entered without sufficient notice to the husband and also because it, too, fails to contain a requirement that wife furnish an injunction bond.

On a substantive level, we deem parts of both orders an abuse of discretion. We note that the husband claims some of these assets are not properly marital property, notwithstanding wife’s allegations that they are. Even if all the subject assets constitute marital property as contended by the wife, the husband still has an equal interest in these assets, an interest which would preclude transferring outright ownership and sole use of such assets exclusively to the wife.1 While it is entirely proper — even desirable — to preserve financial assets pending a final judgment equitably dividing marital property, it is an abuse of the court’s temporary relief powers to transfer such property outright to one party to the detriment of the other party’s co-equal right to the use and enjoyment thereof.

REVERSED.

DELL and WARNER JJ., concur. . We also distinguish a temporary relief order that gives one spouse sole temporary possession of the marital home, usually to care for minor children.


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Citator

Cited By

  • Resil v. Resil, 755 So. 2d 186 (Fla. 3d DCA 2000)
    …at “[n]o temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained ... if the adverse party is wrongfully enjoined.” See Davis v. Davis, 736 So. 2d 123 (Fla. 4th DCA 1999). Because the provisions of the applicable rule were not complied with in this case, the injunction should not have been entered. Reversed and remanded.…

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