RUTH L. BERGER, APPELLANT,
v.
ROBERT L. BERGER, APPELLEE
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Ruth Berger appealed a divorce decree that awarded her ex-husband Robert Berger exclusive possession of their home and its contents, as well as custody and personal property rights. The Florida appellate court affirmed the custody and property distribution decisions but reversed the award of exclusive home possession because it improperly charged the wife's tenant-in-common interest with child support obligations she did not owe.
The court affirmed the sufficiency of evidence supporting the custody and personal property decisions but reversed the award of exclusive home possession to the husband. The award improperly charged the wife's tenant-in-common interest with a child support obligation she did not owe, when the husband bore the full obligation to support the children.
“It is a well settled rule that where evidence is heard by the chancellor, and the witnesses are before him, his findings based upon conflicting evidence should not be disturbed by an appellate court if the record contains substantial evidence to sustain the decree.”
Establishes the standard of review for evidentiary challenges—appellate courts defer to trial judge findings supported by substantial evidence.
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Join FLexlaw to unlock all legal intelligenceRuth and Robert Berger were married and owned a home as tenants by the entirety. Robert was a successful medical doctor actively engaged in his practi…
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The wife appeals from a final decree entered in a divorce suit. The chancellor granted the husband a divorce and custody of the children, decided certain personal property rights, and awarded the wife counsel fees. The court dealt with the home premises owned as an estate by the entire-ties with the following recitation:
“ORDERED, ADJUDGED AND DECREED that the Defendant Counter-Plaintiff, ROBERT L. BERGER, is hereby awarded the right of possession and occupancy of the home * * * and of the furniture, furnishings and chattels therein contained. The Plaintiff Counter-Defendant shall, within five days from the date of the entry hereof * * * surrender possession of said property to the Defendant Counter-Plaintiff. The parties hereto be and they are hereby declared to be tenants-in-common of the said real estate * *
The wife challenges the sufficiency of the evidence to support the custody and personal property decisions. We have reviewed the record and find abundant *280competent evidence to support these facets of the decree. The record is lengthy and of such nature as to make it undesirable to reconstruct the case here in print. The rule by which we are bound in such matters is well known and was lately uttered in Turner v. Noto, Fla.App.1963, 151 So.2d 303, as follows:
“It is a well settled rule that where evidence is heard by the chancellor, and the witnesses are before him, his findings based upon conflicting evidence should not be disturbed by an appellate court if the record contains substantial evidence to sustain the decree. DiMarco v. King, Fla.App.1962, 139 So.2d 750; Cowen v. Cowen, Fla.1957, 95 So.2d 584; Thompson v. Field, Fla. 1951, 54 So.2d 520.”
We fail to find any error and thus approve these adjudications.
We take up now the court’s action in awarding the use of the home property and contents to the husband, this being also questioned by the wife. It is clear that the court may award the use and possession of a home owned as a tenancy by the entirety, whether homestead or not, to a wife as an incident to the court’s power to award child support or alimony. In such cases it is simply a charge upon the home of the husband’s obligation to support his wife and minor children. See Pollack v. Pollack, 1947, 159 Fla. 224, 31 So.2d 253; McRae v. McRae, Fla.1951, 52 So.2d 908; Banks v. Banks, Fla.1957, 98 So.2d 337; Brown v. Brown, Fla.App.1960, 123 So.2d 298. See also 14 U.Fla.L.Rev. 128 (1961) and 8 F.L.P. Divorce and Alimony § 60. Here the husband is a successful medical doctor actively engaged in the practice of his profession and it is not even suggested that the whole obligation of child support does not belong to him. His counter-claim prayer does not ask for the use of the home property or make any mention of it. With this posture we see that the chancellor has decreed that the wife is entitled to an undivided one-half interest in the home prem-íses and contents as a tenant in common and then, despite the fact that she has no obligation to support the children under the circumstances of the case, charged her interest with a child support obligation. Because of this we believe that the award to the husband of such use constitutes error and should be eliminated from the decree leaving the parties simply as tenants in common under F.S.A. § 689.15.
Affirmed in part and reversed in part.
SMITH, C. J., and ANDREWS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Black v. Elliot L. Miller, 219 So. 2d 106 (Fla. 3d DCA 1969)…partition. There is no question that the trial judge acted within the scope of his authority in the divorce suit when he granted Mrs. Black the right of exclusive possession of the marital home in the divorce decree. Berger v. Berger, Fla.App.1966, 182 So. 2d 279. The exclusive right of possession of the marital home was a cloud, or burden upon this property as reflected by the final decree of divorce. The final decree made the Blacks tenants in common, (See Fla.Stat. § 689.15, F.S.A.) and gave record notice…
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Wilmer H. McDONALD v. McDONALD, 368 So. 2d 1283 (Fla. 1979)…support obligation. McRae v. McRae, 52 So. 2d 908 (Fla.1951); Pollack v. Pollack, 159 Fla. 224, 31 So. 2d 253 (1947); Hoskin v. Hoskin, 329 So. 2d 19 (Fla. 3d DCA 1976); Richardson v. Richardson, 315 So. 2d 513 (Fla. 4th DCA 1975); Berger v. Berger, 182 So. 2d 279 (Fla. 4th DCA 1966). The opinions in Ranes and Saviteer neglect to mention that exclusive possession can also be proper when the support obligation in question is owed to the wife alone. Banks v. Banks, 98 So. 2d 337 (Fla.1957); Lange v. Lange, 357…
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Doran v. Doran, 212 So. 2d 100 (Fla. 4th DCA 1968)…that the court in the order appealed from should not have awarded to the defendant husband the sole use and occupancy of the homeplace. Appellant’s point is well taken on the authority of the holding of this court in Berger v. Berger, Fla.App.1966, 182 So. 2d 279. Finally, plaintiff wife complains of that portion of the court’s order which denied her attorneys’ fees. If this were solely a contempt proceeding as contended by appellee, the wife would not be entitled to an allowance of attorneys’ fees, but we…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Solomon Pollack v. Pollack, 159 Fla. 224 (Fla. 1947)
- Isabel M. Cowen (Papert) v. Cowen, 95 So. 2d 584 (Fla. 1957)
- McRae v. McRae, 52 So. 2d 908 (Fla. 1951)
- Percival M. Banks v. Frances L. Banks, 98 So. 2d 337 (Fla. 1957)
- Brown v. Brown, 123 So. 2d 298 (Fla. 3d DCA 1960)
- DI Marco v. King, 139 So. 2d 750 (Fla. 3d DCA 1962)
- Wood v. Wolfe, 151 So. 2d 303 (Fla. 3d DCA 1963)