GLORIA JEAN BUTCHER, APPELLANT,
v.
JACK BUTCHER, APPELLEE
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The court held that the trial court had the authority to divide jointly owned properties in a divorce action when requested by a party and agreed to during the hearing.
The appellant appealed a divorce decree that granted appellee custody of three children and divided jointly owned properties. The appellant argued the…
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Appellant appeals a final decree entered in a divorce action whereby the appellee was granted the custody of three of the minor children of the parties. The trial court also in its final decree ordered a division of the jointly owned properties of the parties. These two rulings of the trial court are the only portions of the final decree appealed.
As to the granting of the custody of three of the minor children of the parties to the appellee, we have carefully reviewed the record on appeal and the briefs filed herein and find that the holding of the trial court as to such custody is supported by competent and substantial evidence which accords with logic and reason.
The appellant contends that the division of the jointly owned properties by the trial court was reversible error in that the chancellor had no authority under the law to divide said properties. Appellant relies on the case of Bergh v. Bergh, Fla.App.1961, 127 So.2d 481. The Bergh case held that in the absence of a voluntary agreement between the parties with respect to the division of jointly held properties and where the pleadings are devoid of any prayer seeking partition of the parties’ interests in jointly owned property, the trial court has no authority to divide jointly owned properties under normal circumstances.
In the instant case the appellee in his complaint prayed for a fair and equitable division of the jointly owned property and in addition thereto the trial court stated in the amended final decree that it was specifically requested without objection during the final hearing to divide the jointly owned properties. These facts in the case sub judice render the law as set forth in the Bergh case, supra, inapplicable herein.
Finding no reversible error in the final decree appealed, it is therefore,
Affirmed.
LILES and McNULTY, JJ., concur.
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Citator
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Rankin v. Rankin, 258 So. 2d 489 (Fla. 2d DCA 1972)…arr v. Lubarr, Fla.App.1967, 199 So. 2d 123; Massey v. Massey, Fla.App.1967, 205 So. 2d 1; and in Steinhauer v. Steinhauer, Fla.App.1971, 252 So. 2d 825. The question then becomes what are appropriate pleadings. In Butcher v. Butcher, Fla.App.1970, 239 So. 2d 855, this court held in an opinion by Judge Hobson, concurred in by Judge McNulty and me, that where the “complaint prayed for a fair and equitable division of the jointly owned property and in addition thereto the trial court stated in the amended fina…
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Niemann v. Niemann, 294 So. 2d 415 (Fla. 4th DCA 1974)…lways the rule, today a trial court is authorized to divide the jointly held property of the parties if such division is sought by one of the parties and tried without objection. The authority relied upon therein is Butcher v. Butcher, Fla.App.1970, 239 So. 2d 855, and Baker v. Baker, Fla.App.1973, 271 So. 2d 796. However, the Second District Court of Appeal appears to have receded from the Butcher case. See Coykendall v. Coykendall, supra. The Baker case does not appear to support the holding of the Walton c…
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Norwood K. Walton v. Walton, 290 So. 2d 110 (Fla. 3d DCA 1974)…es, it appears that today a trial judge is authorized to make a division of real property even if held in an estate by the entireties, if such a division is sought by one of the parties and tried without objection. Butcher v. Butcher, Fla.App. 1970, 239 So. 2d 855; Baker v. Baker, Fla. App.1973, 271 So. 2d 796. This was not always the rule. The earlier cases clearly indicate that a trial judge could not absent a special equity divide jointly held real property [Strauss v. Strauss, 148 Fla. 23, 3 So. 2d 727; V…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bergh v. Bergh, 127 So. 2d 481 (Fla. 1st DCA 1961)
- Allie Pittman v. Mehaffey, 127 So. 2d 481 (Fla. 1st DCA 1961)