DALYA B. ASBELL, APPELLANT,
v.
WAYNE A. ASBELL, INDIVIDUALLY, AND SOUTHERN REPAIR SERVICE, INC., A FLORIDA CORPORATION, APPELLEES
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This case concerns a wife's claim for special equity in the marital home. The appellate court reversed the trial court's decision to "wash out" the wife's claim with a potential credit for the husband's rental value claim, finding the husband's claim was improperly raised and lacked evidence.
Yes, the trial court erred. The husband failed to plead a claim for rental value, and there was no evidence presented to support such a claim, making the "wash out" improper.
[1] A claim for affirmative relief, such as a credit for rental value of a marital residence, must be included in the pleadings.
[2] A trial court errs in awarding affirmative relief when the opposing party has not requested such relief in their pleadings.
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“Although the husband would concede that the wife would be entitled to additional special equity for one-half of the first mortgage since the date of separation, he argues that husband is entitled to a credit for one-half of the rental value. There was no specific evidence on rental value and the court considers these two issues a ‘wash.’”
This quote captures the trial court's reasoning for offsetting the wife's special equity claim.
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Join FLexlaw to unlock all legal intelligenceThe wife sought a special equity in the marital residence, arguing she used proceeds from a pre-marital home sale for its purchase and had solely made…
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PER CURIAM.
The instant appeal arises out of the dissolution of the marriage of Dalya and Wayne Asbell. After more than twenty years of marriage, the wife filed a petition for dissolution of marriage, seeking, among other things, a special equity in the marital residence on the grounds that (1) she had owned a home prior to the marriage and the proceeds from the sale of that home had been used to purchase the current marital residence and (2) since the husband had moved out, she alone had made the first mortgage payments on the home. In the final judgment, the trial court made the following finding regarding the wife’s claim for a special equity grounded in her payment of the first mortgage: “Although the husband would concede that the wife would be entitled to additional special equity for one-half of the first mortgage since the date of separation, he argues that husband is entitled to a credit for one-half of the rental value. There was no specific evidence on rental value and the court considers these two issues a ‘wash.’ ”
On appeal, the wife argues that the finding that her claim of special equity was washed out by the husband’s entitlement to credit for half of the rental value of-the residence was clearly error because (1) the husband failed to include in his pleadings any claim for rental value and (2) as the judge acknowledged, there was no evidence regarding rental value. Both of the wife’s arguments have merit. See Johnson v. Johnson, 546 So. 2d 97, 98 (Fla. 4th DCA 1989)(holding that it was error for trial court to award to husband half of the rental proceeds received by the former wife where the husband’s pleadings failed to contain a request for such affirmative relief); Adkins v. Adkins, 595 So. 2d 1032, 1035 (Fla. 1st DCA 1992)(“The fair rental value of the property may or may not be directly related to the amount of the mortgage payments.”). Consequently, we reverse the final judgment of dissolution and direct the trial court to amend the final judgment consistent with this opinion.
REVERSED and REMANDED.
KLEIN, STEVENSON and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Adkins v. Adkins, 595 So. 2d 1032 (Fla. 1st DCA 1992)
- Johnson v. Johnson, 546 So. 2d 97 (Fla. 4th DCA 1989)