JACQUELINE GOODSTEIN, APPELLANT,
v.
ALBERT GOODSTEIN, APPELLEE
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A wife appealed an interlocutory order granting sale of the marital residence as pendente lite relief in a separate maintenance action. The court reversed, holding that a trial judge cannot order partition of an estate by the entirety without proper pleadings or express agreement from both parties.
A trial judge may not order sale or partition of an estate by the entirety without either an appropriate pleading by the party seeking partition or the clear agreement of both parties. The trial judge's order was improper because no pleading supported it at the time of entry and no written agreement appeared in the record.
“the trial judge may not disturb an estate by the entirety even after it becomes an estate in common as a result of a divorce decree without the agreement of the parties or appropriate pleadings”
Establishes the core holding that partition of an estate by the entirety requires either written agreement or proper pleadings.
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Join FLexlaw to unlock all legal intelligenceThe wife filed a complaint for separate maintenance and the husband counterclaimed for divorce. The trial court ordered sale of the residence owned as…
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This is an interlocutory appeal by a plaintiff-wife from an order granting pendente lite relief to the defendant-husband. The order provided for sale under process of the court of the residence owned by the parties as an estate by the entirety.
The appellant brought a complaint for separate maintenance, and the appellee counterclaimed for a divorce. Neither answer nor counterclaim pray for partition of the residence. See Banfi v. Banfi, Fla.App. 1960, 123 So.2d 52.
In this State there are a number of decisions which support the appellant’s contention that the trial judge may not disturb an estate by the entirety even after it becomes an estate in common as a result of a divorce decree without the agreement of the parties or appropriate pleadings. See Benson v. Benson, Fla.App.1958, 102 So.2d 748, 753; Bell v. Bell, Fla.App.1959, 112 So.2d 63, 66; Latta v. Latta, Fla.App.1960, 121 So.2d 42, 45; Banfi v. Banfi, Fla.App.1960, 123 So.2d 52; Helsel v. Helsel, Fla.App. 1962, 138 So.2d 99.
Appellee points out that the trial judge relied upon the implied agreement of the parties that a sale was desirable, and a review of the circumstances surrounding this appeal convinces us that the trial judge may have been misled to believe that the wife agreed to the procedure employed. Nevertheless, because at the time the court entered the order there was no pleading to support the order, and because no agreement of the wife appears in record, we find it necessary to reverse the order appealed. In so doing we point out that the record reflects an amendment to the answer of the husband to pray for relief by way of partition. This amendment was made after the order was entered and may well support the granting of the relief prayed subsequent to the final decree, if a final decree of divorce shall be entered. On the other hand, we cannot presume that a decree of divorce will be entered; and if the trial court finds that the equities are with the plaintiff-wife, a *322decree of separate maintenance will not support a partition of the home property. Naurison v. Naurison, Fla.App.1961, 132 So.2d 623.
Reversed and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Moore v. Moore, 311 So. 2d 152 (Fla. 3d DCA 1975)…f the stated contingencies, because there was no prayer for partition by either of the parties. For this reason, the court was without authority to provide for partition of the home and division of the proceeds. Goodstein v. Goodstein, Fla.App.1968, 212 So. 2d 321. This portion of the final judgment hereby is ordered deleted. The decision of whether and when to partition the subject property must be left to the tenants in common. Valentine v. Valentine, Fla.1950, 45 So. 2d 885. Third, the judgment is silent…
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Muhlrad v. Muhlrad, 375 So. 2d 24 (Fla. 3d DCA 1979)…ida that a trial court, in a divorce action or in a dissolution of marriage action, may not order the sale of jointly-owned real estate without the agreement of the parties. Sharpe v. Sharpe, 267 So. 2d 665 (Fla.3d DCA 1972); Goodstein v. Goodstein, 212 So. 2d 321 (Fla.3d DCA 1968); Preston v. Preston, 216 So. 2d 31 (Fla.3d DCA 1968); cert. denied, 222 So. 2d 753 (Fla.1969). Rather, the effect of holding title to real property as tenants by the entireties during coverture is that upon dissolution, Section 68…
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Holton v. Holton, 216 So. 2d 35 (Fla. 3d DCA 1968)…on. In the absence of any pleadings requesting a partition of the Aeroland Oil Company property or the proceeds of any lease thereon, the court was without jurisdiction or authority to enter the aforesaid award. Goodstein v. Goodstein, Fla.App.1968, 212 So. 2d 321. We do not mean to hold that the ex-wife, Mildred, might not be entitled to the sum of $6300 or some portion thereof, but only that due process requires the ex-husband to be properly notified of her claim and that he be permitted to file his pleadin…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Banfi v. Enrico Luigi Banfi, 123 So. 2d 52 (Fla. 3d DCA 1960)
- Latta v. Parker A. Latta, 121 So. 2d 42 (Fla. 3d DCA 1960)
- Benson v. Benson, 102 So. 2d 748 (Fla. 3d DCA 1958)
- Bell v. Bell, 112 So. 2d 63 (Fla. 3d DCA 1959)
- Helsel v. Helsel, 138 So. 2d 99 (Fla. 3d DCA 1962)
- Naurison v. NAURiSON, 132 So. 2d 623 (Fla. 3d DCA 1961)