JOHN V. KILIAN, APPELLANT,
v.
DOROTHY R. KILIAN, APPELLEE
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In this divorce appeal, the Florida District Court of Appeal affirmed a decree awarding the wife the husband's interest in their jointly owned home as lump sum alimony. The court rejected the husband's argument that property held as tenants by the entireties could not be awarded as alimony, holding that upon divorce such property becomes tenancy in common and may be distributed by the chancellor.
The court held that a chancellor has the power to award a spouse's interest in property held as tenants by the entireties as lump sum alimony. Upon dissolution of marriage, property held as an estate by the entireties becomes tenancy in common, with each party owning an undivided one-half interest that can be ordered conveyed as alimony.
“The interest's of the parties, who must have been man and wife for such an estate to have been created, became crystallized by a dissolution of the union. At once they became 'tenants in common.'”
Establishes the legal consequence of divorce on property held as tenants by the entireties—it converts to tenancy in common
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Join FLexlaw to unlock all legal intelligenceJohn and Dorothy Kilian were divorced. They had jointly acquired a home with approximately $4,000 in equity and a small doughnut shop business that ha…
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CARROLL, CHAS., Chief Judge.
•A final decree awarded the appellee Dorothy R. Kilian a divorce, a half interest in a business of the parties, and the husband’s interest in their jointly owned furnished home.
The appeal challenges only that portion of the decree awarding to tire wife the husband’s share of the home as lump sum alimony.
The appellant’s contention, that the interest in the property held by the husband and wife in an estate by the en-tireties could not be the subject of lump sum alimony to his wife, is without merit. Bezanilla v. Bezanilla, Fla.1953, 65 So. 2d 754; Reid v. Reid, Fla. 1954, 68 So. 2d 821; and Halberstadt v. Halberstadt, Fla.1954, 72 So. 2d 810.
In Reid v. Reid, supra, 68 So. 2d at page 822, the Supreme Court speaking through Mr. Justice Thomas, settled that question as follows:
“The first question may be simply stated: Did the chancellor have the power to command the appellant to convey his interest in the property which was held as an estate by the en-tireties at the time the decree was entered ?
“We have so frequently dealt with such an estate that there is no occasion to pause here to repeat our definitions. It is sufficient to say that the interest’s of the parties, who must have been man and wife for such an estate to have been created, became crystallized by a dissolution of the union. At once they became ‘tenants in common.’ Sec. 689.15, Florida Statutes 1951, and F.S.A., each owning an undivided one-half interest in the property.
“Clearly, under Sec. 65.08, Florida Statutes 1951, and F.S.A., the chancellor had the power to order payment of alimony ‘in a lump sum.’ He had also the power to require the conveyance by the husband to the wife of real property owned entirely by the husband. See Bezanilla v. Bezanilla, Fla., 65 So. 2d 754. If the chancellor can order the conveyance of property the husband owns outright there is no reason to hold that he cannot order the man to convey to the woman his undivided interest in property they own as tenants in common.”
The contention that the allowance of alimony was an abuse of discretion, likewise is without merit, and appellant has failed to sustain the burden of showing an abuse of discretion on the record. See Astor v. Astor, Fla.1956, 89 So. 2d 645, 648; and Lauderdale v. Lauderdale, Fla.App., 1957, 96 So. 2d 663, 665.
The record on appeal shows that their acquisition of the home and of the small business (doughnut shop) was through contributions of both parties; that the doughnut shop had become a losing proposition; that the husband was able-bodied and was able to support himself; that the wife was in need of support, the amount of which she estimated at $25 a week; and the equity in the home was shown to be $4,000.
In view of the picture presented by the record we think the chancellor was authorized under Section 65.08, Florida Statutes 1955, F.S.A., to enter the order he did. He had power to make a lump sum award for alimony. Both parties appear satisfied with the divorce and in sharing-the business. The lump sum alimony award, approximating $2,000 in value, is equivalent to “permanent” alimony at $25 a week for a period of less than two years. We find no basis in the record to disturb the alimony decreed by the chancellor. Accordingly, the decree appealed from should be, and hereby is affirmed.
Affirmed.
HORTON and PEARSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Bell v. Bell, 112 So. 2d 63 (Fla. 3d DCA 1959)…he forced sale with one-half of the proceeds going to the wife is not for the purpose of any. lump sum settlement as alimony. See Bezanilla v. Bezanilla, Fla.1953, 65 So. 2d 754; Reid v. Reid, Fla.1954, 68 So. 2d 821; Kilian v. Kilian, Fla.App.1957, 97 So. 2d 201. The chancellor’s findings fail to establish any special equitable right to the property in question in either party. See Heath v. Heath, 103 Fla. 1071, 138 So. 796, 82 A.L.R. 537; Eakin v. Eakin, Fla.1958, 99 So. 2d 854. It is error for the court,…
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Norwood K. Walton v. Walton, 290 So. 2d 110 (Fla. 3d DCA 1974)…689.15, Fla.Stat. One of the early departures from this firm rule was that a chancellor could award the husband’s interest in the jointly held marital home as lump sum alimony. Reid v. Reid, Fla. 1953, 68 So. 2d 821; Kilian v. Kilian, Fla.App.1957, 97 So. 2d 201; Bergh v. Bergh, supra; Harder v. Harder, Fla.App.1972, 264 So. 2d 476. The courts also recognized that the wife could secure the husband’s interest in jointly held property by proving a special equity. Heath v. Heath, 103 Fla. 1071, 138 So. 796; Pa…
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Harder v. Harder, 264 So. 2d 476 (Fla. 3d DCA 1972)…a.App.1969, 219 So. 2d 749; Webb v. Webb, Fla.App.1963, 156 So. 2d 698; Gonzalez v. Gonzalez, Fla.App.1963, 156 So. 2d 206; Bergh v. Bergh, Fla.App.1961, 127 So. 2d 481; Bailey v. Bailey, Fla.App.1961, 126 So. 2d 165; Kilian v. Kilian, Fla.App.1957, 97 So. 2d 201. The final judgment is affirmed except for that provision in the final judgment concerning the wife’s conveyance to the husband of all of her right, title and interest in and to all her remaining property which we reverse. Affirmed in part and rev…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lauderdale v. Lauderdale, 96 So. 2d 663 (Fla. 3d DCA 1957)
- Reid v. Reid, 68 So. 2d 821 (Fla. 1953)
- Astor v. Astor, 89 So. 2d 645 (Fla. 1956)
- Rambo v. Mayo, 65 So. 2d 754 (Fla. 1953)
- Bezanilla v. Bezanilla, 65 So. 2d 754 (Fla. 1953)
- Halberstadt v. Halberstadt, 72 So. 2d 810 (Fla. 1954)