MARILYN N. COOPER, APPELLANT,
v.
SIDNEY H. COOPER, APPELLEE

Fla. 3d DCA | 1972-04-04
No. 71-931
Before BARKDULL, C. J., and PEARSON and CHARLES CARROLL, JJ.
260 So. 2d 272 Florida District Court of Appeal, Third District (1972) Positive Treatment
Cited by 6 cases

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Synopsis

In this divorce appeal, the Florida District Court of Appeal affirmed the trial court's grant of divorce to the husband but modified the custody and property divisions to provide the wife with permanent custody (rather than probationary), unlimited occupancy of the marital home (rather than one year), and shared mortgage payment responsibility with the husband (rather than sole responsibility).


Holding

The court affirmed the divorce award, the custody award to the appellant, the right of use of the marital home, the tenancy in common designation, and the support award. However, the court modified the judgment to provide permanent custody (subject to modification) rather than probationary custody, unlimited occupancy of the marital home rather than one-year limitation, and equal sharing of mortgage payments, taxes, insurance, and major repairs rather than requiring the wife to bear the entire mortgage payment burden.


Headnotes

[1] A court may award divorce to one spouse even if the other spouse also claims divorce.

[2] Probationary child custody may be modified or made permanent based on statutory provisions.

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Key Quotes

“We affirm the action of the chancellor in awarding custody of the minor children to the appellant, but believe it should have been permanent custody subject to modification pursuant to § 61.13, Fla.Stat., F.S.A.”

The court's holding that custody should be permanent rather than probationary as the trial court ordered.

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Facts & Procedural History

Marilyn and Sidney Cooper were both school teachers earning approximately the same income. The marital home was purchased in part with money given to …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Following a complaint and counterclaim, the chancellor awarded the appellee a divorce; awarded the appellant probationary custody of the minor children for a period of one year; awarded her possession of the marital home for the probationary custody period [which had been held as an estate by the entireties and, upon the final judgment, they became tenants in common, § 689.15, Fla.Stat., F.S.A.]; awarded her $25.00 a week per child as support; and recognized that subsequent to the probationary period either party could partition the marital home. During the period the appellant had possession of the marital home, she would be required to make the monthly mortgage payments and was to be given credit for said payments upon the sale of the real property. The chancellor also recognized that the parties were tenants in common as to all the personal property located in the marital home.

The appellant has prosecuted this appeal and urges error in: (1) Awarding the divorce to the appellee and denying her claim for divorce. (2) Establishing probationary custody. (3) Requiring her to make the mortgage payments on the marital home. (4) Finding that the parties were tenants in common as to the personal property. (5) Fixing an inadequate support award.

The evidence indicates that the parties were both employed as school teachers, earning approximately the same amount of money; that the marital home was purchased in part with money given to the parties by the appellant’s parents.

We affirm the action of the chancellor in awarding the divorce to the appellee. Parker v. Parker, Fla.App.1957, 97 So.2d 136; Dames v. Dames, Fla.App.1963, 149 So.2d 570. We affirm the action of the chancellor in awarding custody of the minor children to the appellant, but believe it should have been permanent custody subject to modification pursuant to § 61.13, Fla.Stat., F.S.A. We affirm the action of the chancellor in granting the appellant and the children the right to use the marital *274home. But, we disagree with this right of use being limited to a period of one year and requiring the wife to make the mortgage payments with a credit to be given her upon the sale of the property. We affirm the action of the chancellor in finding that, upon the entry of the final judgment, the parties’ interest in the marital home became that of tenants in common both as to the real and personal property. We affirm the support award of $25.00 per week per child, even though it appears minuscule; but we do not find that the chancellor committed any abuse of discretion under the evidence in fixing same. Rogoff v. Rogoff, Fla.App.1959, 115 So.2d 456; Farr v. Farr, Fla.App.1964, 164 So.2d 890. Of course, this award is subject to continuous review by the court pursuant to § 61.14, Fla.Stat., F.S.A. We conclude that the chancellor erred in requiring the appellant to make the mortgage payments in their entirety.

Therefore, except as hereinafter modified, we affirm the action of the chancellor in the entry of the final judgment of divorce by striking therefrom the period of probationary custody of the minor children, thereby leaving them in the custody of the appellant subject to the provisions of § 61.-13, Fla.Stat., F.S.A., by eliminating the time limitation by which the appellant may occupy the marital premises and to provide that, until such time as she remarries or the youngest child reaches her majority, the appellant may continue to occupy the premises with each of the parties being responsible for one-half of the mortgage payments, taxes, insurance, and major repairs, which is the normal responsibility of tenants in common. Spencer v. Spencer, 160 Fla. 749, 36 So.2d 424; Mintz v. Ellison, Fla.App.1970, 233 So.2d 156. The appellant should be responsible for all normal upkeep and maintenance.

Therefore, the final judgment of divorce here under review be and the same is hereby affirmed as modified.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Kindred v. Kermit G. Kindred, 284 So. 2d 489 (Fla. 3d DCA 1973)
    …PER CURIAM. Affirmed. See: Zuidhof v. Zuidhof, Fla.App.1971, 242 So. 2d 739; Weston v. Weston, Fla.App.1971, 251 So. 2d 315; Landsberg v. Landsberg, Fla.App.1972, 259 So. 2d 727; Cooper v. Cooper, Fla.App.1972, 260 So. 2d 272.…
  • …[*371] PER CURIAM. Affirmed. See: Cooper v. Cooper, Fla.App.1972, 260 So. 2d 272; Poe v. Poe, Fla.App.1972, 263 So. 2d 644; Baker v. Baker, Fla.App.1973, 271 So. 2d 796.…
  • Shaw v. Shaw, 314 So. 2d 205 (Fla. 3d DCA 1975)
    …view that the husband has the ability to pay for the expenses upon the marital home, which we have enumerated above, both as an element of child support and also to maintain his own half interest in the property. See, Cooper v. Cooper, Fla.App.1972, 260 So. 2d 272; Green v. Green, Fla.App.1970, 230 So. 2d 492; Berger v. Berger, Fla.App. 1966, 182 So. 2d 279; Rudolph v. Rudolph, Fla.App.1962, 146 So. 2d 397. The husband is a practicing attorney, and his 1973 tax return reflects an adjusted gross income of ove…

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