ARMAND F. BERNST, APPELLANT,
v.
SYLVIA BERNST COTTER, FORMERLY SYLVIA BERNST, APPELLEE
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A divorced husband appeals the denial of his motion to modify the divorce decree, seeking relief from his obligation to maintain the marital home and to partition it. The court reverses, holding that the husband's maintenance obligations were alimony-like support that terminated upon the wife's remarriage, and grants his request for partition.
The court held that the husband's obligation to maintain the home constituted support/alimony as an incident of the divorce decree and was terminated by the wife's remarriage. The husband is entitled to partition the home and is relieved of all future obligation to support and maintain his former wife, though he is not entitled to retroactive relief for the period of inaction.
[1] An award of the use and occupation of a marital home to a spouse may be considered an incident of support, akin to alimony.
[2] A spouse's obligation to pay for the maintenance of a marital home awarded to the other spouse as an incident of support is terminated upon the recipient spouse's remarri…
Previewing 2 of 6 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“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.”
Establishes the legal principle that maintenance obligations for a home awarded to an ex-wife constitute support/alimony as an incident of the divorce decree.
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Join FLexlaw to unlock all legal intelligenceThe parties divorced on October 14, 1962. The divorce decree awarded no monetary alimony to the wife but gave her the use and occupation of the marita…
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This is an appeal by the husband from the denial of his motion to modify his divorce decree. We find merit in his allegations and reverse.
The parties were divorced on October 14, 1962. No monetary alimony was awarded to the wife but she was given the “use and occupation” of the marital domicile, held by a tenancy by the entireties, and the husband was required to pay half the cost of maintaining same. On October 20, 1964, the wife remarried.
The husband now seeks, for the first time formally, to be relieved of his obligation, to collect rent from his former wife, and to partition the home in keeping with the parties’ status as tenants-in-common. Ch. 689.15, F.S.1969, F.S.A.
We agree with the husband that his house contributions were in lieu of alimony, as an incident of support. This concept was discussed in Berger v. Berger, Fla.App.1966, 182 So.2d 279:
“ . . . 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.”
See also Thomas v. Greene, Fla.App.1969, 226 So.2d 143.
By so characterizing, the husband’s obligation was released and relieved upon the wife’s remarriage. Friedman v. Schneider, Fla.1951, 52 So.2d 420; Chaachou v. Chaachou, Fla.1961, 135 So.2d 206; Evans v. Evans, Fla.App.1968, 212 So.2d 107. However, such a release does not operate automatically. An award of alimony will be terminated by the court, in its discretion, upon proper application. 10 Fla. Jur., Divorce § 163; Friedman v. Schneider, supra; Reese v. Reese, Fla.1966, 192 So.2d 1. See generally 48 A.L.R.2d 270, Anno., Alimony, Effect of remarriage.
Therefore, we can not hold that the husband is entitled to any retroactive relief for his period of inaction to date.
In view of the above reasoning it was also error to order the husband to pay the wife’s attorney fees.
This court concludes that the appealed order be reversed and remanded with instructions to grant the husband’s prayer for partition. The husband shall be relieved of all future obligation to support and maintain his former wife.
Reversed and remanded, with instructions.
REED, C. J., and CROSS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Maas v. Maas, 438 So. 2d 1068 (Fla. 2d DCA 1983)…application, to the extent authorized by valid provisions in the statute [or as authorized by Frye], even though the court had not expressly reserved authority to change or modify a decree when it was rendered. 182 So. at 208. See Bernst v. Cotter, 256 So. 2d 529 (Fla. 4th DCA 1972). See generally Annot., 48 A.L.R.2d 270, 291-93, 525 (1956). Cases decided since the inclusion of rehabilitative alimony in the dissolution of marriage statute have continued to apply this principle. See Thomas v. Thomas, 352 So.…
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Betts v. Samardak, 609 So. 2d 700 (Fla. 4th DCA 1992)…Hartzell v. Hartzell, 434 So. 2d 353 (Fla. 4th DCA 1983). Appellant correctly concedes that termination of the alimony obligation upon remarriage is not automatic and that application must be made to the court for relief. See, e.g., Bemst v. Cotter, 256 So. 2d 529 (Fla. 4th DCA 1972). On the other hand, appellee, the former wife, argues that the periodic payments are imposed as part of a property settlement scheme and thus are neither terminable nor modifiable. The legal conclusion that periodic payments whi…
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Roberts v. Roberts, 385 So. 2d 1032 (Fla. 5th DCA 1980)…iodic alimony. There does exist the teasing proposition that periodic alimony is different from child support. It has been said that the former does not terminate automatically on remarriage, but only upon application to the court. Bernst v. Cotter, 256 So. 2d 529 (Fla. 4th DCA 1972); Cann v. Cann, 334 So. 2d 325 (Fla. 1st DCA 1976). Neither of these decisions, however, involved an adjudication of contempt and we can find no logical reason to apply them to such situation. There is a necessity in seeing that a…
Authorities Cited (11 total)
- Solomon Pollack v. Pollack, 159 Fla. 224 (Fla. 1947)
- McRae v. McRae, 52 So. 2d 908 (Fla. 1951)
- Fredericka Phillips Chaachou v. Khudourie Chaachou, 135 So. 2d 206 (Fla. 1961)
- Percival M. Banks v. Frances L. Banks, 98 So. 2d 337 (Fla. 1957)
- Friedman v. Schneider, 52 So.2d 420 (Fla. 1951)
- In re Petition of David Krueger for Admission to The Florida Bar, 135 So. 2d 206 (Fla. 1961)
- Berger v. Berger, 182 So. 2d 279 (Fla. 4th DCA 1966)
- Brown v. Brown, 123 So. 2d 298 (Fla. 3d DCA 1960)
- Reese v. Reese, 192 So. 2d 1 (Fla. 1966)
- Thomas v. Greene, 226 So. 2d 143 (Fla. 1st DCA 1969)