DAVID MICHAEL COLLINS, APPELLANT.
v.
CATHY LYNN COLLINS, APPELLEE
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In this family law appeal, the court affirmed the trial court's award of primary residential custody to the mother but remanded to increase the father's visitation frequency, finding the every-other-weekend schedule inadequate for young children. The court also reversed the trial court's award of special equity in the marital home to the mother because she failed to plead for special equity and a joint family loan cannot support such an award.
The court affirmed the award of primary residential custody to the mother but reversed the award of special equity in the marital home and remanded for revision of the visitation schedule to provide more frequent contact between the father and his young children.
[1] A trial court may err in awarding a special equity in a marital home absent a specific pleading or oral amendment requesting such relief.
[2] A special equity in a marital home cannot be awarded when the funds for the down payment were a joint loan from a third party to both spouses.
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“Generally, the younger the child, the greater the need for frequent contact with both parents. More frequent contact is particularly necessary in this case, where the trial judge specifically commented that "there was some confusion on the children's part as to the actual father," confusion which would appear to result from their frequent contact with Cathy's boyfriend.”
Establishes the court's rationale for remanding visitation, emphasizing that young children require frequent contact with both parents and that the trial court's own findings supported increased visitation.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDavid and Cathy Collins dissolved their marriage and had two young children, Kyle (age 5) and Matthew (age 3). Cathy's father loaned the couple $4,000…
The full statement of facts, procedural history, and disposition for this case are member content.
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PETERSON, J.
David Michael Collins appeals a final judgment of dissolution of marriage which grants primary residential custody of the parties’ five and three year-old children, Kyle Patrick Collins and Matthew David Collins, to the mother, Cathy Lynn Collins. David alternatively alleges that he was not awarded sufficient visitation. He further contends that the trial court erred in its equitable distribution of the parties’ marital assets by awarding Cathy a special equity in the marital home. We affirm the award of custody, but remand for the purpose of revising the visitation schedule to allow David more time with his children. We also reverse the award of the special equity in the former marital residence.
The trial court’s visitation schedule allows David to visit with his children every other weekend. We believe this is too infrequent based upon the young ages of the children. Generally, the younger the child, the greater the need for frequent contact with both parents. More frequent contact is particularly necessary in this case, where the trial judge specifically commented that “there was some confusion on the children’s part as to the actual father,” confusion which would appear to result from their frequent contact with Cathy’s boyfriend. We remand with instructions to the trial court to allow more frequent visitation between the children and their father. See Florida Dissolution of Marriage § 11.24 — 11.33 (The Florida Bar CLE 1998) for suggestions on possible visitation schedules based on the age .of the child.
We agree with David that the trial court erred in awarding Cathy a special equity in the marital home.
The record reflects that Cathy’s father loaned her and David, jointly, $4,000 to pay the down payment on the marital residence.
The trial court awarded Cathy a special equity for this amount.
However, Cathy did not plead special equity in her petition for dissolution of marriage nor did she orally amend her pleadings to include a prayer for special equity.
Moreover, the parties cannot be said to have tried this issue by consent. When the former wife’s counsel asked whether there was anything in which the former wife wished to declare a special equity, Cathy only mentioned jewelry and no mention was made of the former wife’s father’s contribution to the marital home. In the absence of a prayer for special equity, the trial court abused its discretion in awarding a special equity in the marital home. Hu v. Hu, 432 So. 2d 1389 (Fla. 2d DCA 1983) (special equity cannot be awarded simply on basis of general prayer for equitable distribution); see also Barlow v. Barlow, 562 So. 2d 425 (Fla. 2d DCA 1990).
Moreover, it is well established that where a party outside the marriage makes a loan to the husband and wife jointly, neither spouse is entitled to a special equity. See Martinez v. Martinez, 573 So. 2d 37, 45 (Fla. 1st DCA 1990), rev. denied, 581 So. 2d 1309 (Fla.1991), and cases cited therein. We reverse that portion of the final judgment which awards a special equity in the former marital residence and remand for revision of the schedule for visitation.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
DAUKSCH, J., and ORFINGER, M., Senior Judge, concur.
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Caruso v. Caruso, 814 So. 2d 498 (Fla. 4th DCA 2002)…husband’s lawyer objected on the grounds that it was not pled and the trial court sustained the objection. Without pleading a special equity or the issue being tried by consent, a party should not be awarded a special equity. See Collins v. Collins, 737 So. 2d 1204, 1205 (Fla. 5th DCA 1999); Barlow v. Barlow, 562 So. 2d 425 (Fla. 2d DCA 1990). As the husband asserts, there was no testimony as to any of the amounts paid on the mortgage and as to how much the mortgage was paid down during the marriage. The husb…
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Austin v. Austin, 861 So. 2d 518 (Fla. 1st DCA 2003)…did not plead special equity and testified at the final hearing that he was not seeking any special equity. Accordingly, we reverse and remand to the trial court with instructions to treat the marital home as a marital asset. See Collins v. Collins, 737 So. 2d 1204, 1205 (Fla. 5th DCA 1999)(reversing the trial court’s award of special equity in the marital home because it was not pled); Hu v. Hu, 432 So. 2d 1389, 1390-91 (Fla. 2d DCA 1983)(same); Parker v. Parker, 610 So. 2d 719, 720 (Fla. 1st DCA 1992)(holdin…
Authorities Cited
- Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990)
- Althea B. HU v. HU, 432 So. 2d 1389 (Fla. 2d DCA 1983)
- Florrie Emma Barlow v. Barlow, 562 So. 2d 425 (Fla. 2d DCA 1990)