WANDA COYKENDALL, APPELLANT,
v.
MILTON COYKENDALL, APPELLEE

Fla. 2d DCA | 1972-01-05
No. 71-146
PIERCE, C. J., and McNULTY, J., concur., PIERCE, C. J., and McNULTY, J., concur.
260 So. 2d 558 Florida District Court of Appeal, Second District (1972) Caution
Cited by 8 cases

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Synopsis

In this divorce case, the Florida District Court of Appeal affirmed in part and modified in part the trial court's division of marital assets. The court upheld the equitable division of Publix stock shares but modified the disposition of jointly-held real estate to require reimbursement to the wife for mortgage payments made during separation before dividing remaining proceeds equally.


Holding

The court affirmed the trial court's division of the Publix stock as not an abuse of discretion. The court modified the disposition of the home property to require that if sold, the wife be reimbursed for the mortgage payments she actually made while parties were separated, with remaining proceeds divided equally, and remanded for determination of the reimbursement amount.


Headnotes

[1] A trial court does not abuse its discretion in dividing marital property, including stock, according to the testimony of the parties regarding ownership.

[2] A request for partition of jointly-owned property made in court, without objection from the opposing party, is sufficient to allow for the sale of the property, even if n…

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Key Quotes

“Even though nothing in the pleadings requests partition of the parties' interest in jointly-owned property, the husband's in-court request for such relief, accompanied by the wife's failure to object, is sufficient to allow the sale.”

Establishes that a party may obtain relief for partition of jointly-owned property through in-court request even if not pleaded, provided the other party fails to object.

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Facts & Procedural History

Wanda and Milton Coykendall were married on December 31, 1964, and purchased a home held by the entirety, with the husband making the down payment and…

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Opinion of the Court
LILES, Judge.

LILES, Judge.

Wanda and .Milton Coykendall were married on December 31, 1964, and subsequently purchased a home held by the entirety. The husband made the downpayment and periodic payments on the mortgage from time of purchase until the parties separated a little over a year prior to the divorce. During the marriage the wife purchased 40 shares of Publix Supermarket stock and the husband purchased 200 shares of such stock.

Mrs. Coykendall filed suit for divorce, asking for exclusive use of the home property and conveyance to her of her husband’s interest in the property as lump sum alimony. The court granted the divorce and ordered that the home and furnishings be sold and the proceeds divided equally. The order also' stated that the Publix stock was to be changed to reflect ownership solely in the party out of whose salary the shares were purchased. Mrs. Coykendall moved for rehearing, and the motion was denied. The husband moved for enforcement of final judgment, and the court ordered that the wife accept or reject the husband’s offer to purchase the home property, providing that in case of rejection of the offer by the wife, the property would be sold. Wife’s motion to amend judgment was denied and she appealed.

The wife argues the trial court should have awarded her the home property as lump sum alimony rather than ordering ■the home sold. She also says the trial court erred by dividing the stock shares as it did.

The record shows this was a marriage of fairly short duration with no children involved. Both parties were employed at the time of the final hearing and their earnings were approximately equal. They had a small equity in a house, and the previously mentioned 240 shares of Publix stock.

The division of the stock was made in accordance with the testimony of the wife as to which shares of stock were actually hers and which shares belonged to Mr. Coykendall. We cannot say the trial court abused its discretion in this matter.

The wife offered very little testimony on the issue of the residence. The husband requested that the court order the property sold and the proceeds divided. Even *559though nothing- in the pleadings requests partition of the parties’ interest in jointly-owned property, the husband’s in-court request for such relief, accompanied by the wife’s failure to object, is sufficient to allow the sale. Butcher v. Butcher, Fla.App.1970, 239 So.2d 855. It is clear from the record that the wife made some of the mortgage payments while the parties were separated. It is not clear, however, how many payments she actually made. The decision in this case is therefore modified to the extent that in the event the property is sold the wife should be reimbursed from the proceeds of the sale for the payments she actually made while the parties were separated, with the remaining proceeds to be divided equally. The trial judge should hear evidence on this question and determine the proper amount of reimbursement to the wife.

Affirmed in part and modified in part.

PIERCE, C. J., and McNULTY, J., concur.

ON REHEARING GRANTED

LILES, Judge.

Appellant’s attorney filed her petition for rehearing in a divorce action in which this court rendered an opinion affirming the judgment of the trial court. Sufficient facts surrounding the cause are set forth in the original opinion and it is not necessary to recite these facts.

Upon a complete review of the law of Florida the petition for rehearing is hereby granted and this court’s original opinion is quashed and set aside. This cause is reversed upon the authority of Rankin v. Rankin, Fla.App.2d 1972, 258 So.2d 489, and remanded for action consistent with that opinion.

PIERCE, C. J., and McNULTY, J., concur.

Other
LILES, Judge.

LILES, Judge.

Appellant’s attorney filed her petition for rehearing in a divorce action in which this court rendered an opinion affirming the judgment of the trial court. Sufficient facts surrounding the cause are set forth in the original opinion and it is not necessary to recite these facts.

Upon a complete review of the law of Florida the petition for rehearing is hereby granted and this court’s original opinion is quashed and set aside. This cause is reversed upon the authority of Rankin v. Rankin, Fla.App.2d 1972, 258 So. 2d 489, and remanded for action consistent with that opinion.

PIERCE, C. J., and McNULTY, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Niemann v. Niemann, 294 So. 2d 415 (Fla. 4th DCA 1974)
    …ty divided in a manner other than that provided by 689.15, F.S. 1971, F.S.A., he must agree to the manner of the division or properly plead a right to partition. Bergh v. Bergh, supra; Rankin v. Rankin, supra; Coykendall v. Coykendall, Fla.App.1972, 260 So. 2d 558. We find the present record insufficient to justify the awards in question either on the basis of an agreement of the parties or on the basis of an appropriately pleaded prayer for partition. In a recent decision, Walton v. Walton, Fla.App.1974, 29…
  • Zeller v. Zeller, 396 So. 2d 1177 (Fla. 4th DCA 1981)
    …rty divided in a manner other than that provided by 689.15, F.S.1971, F.S.A., he must agree to the manner of the division or properly plead a right to partition. Bergh v. Bergh, supra; Rankin v. Rankin, supra; Coykendall v. Coykendall, Fla.App.1972, 260 So. 2d 558. We find the present record insufficient to justify the awards in question either on the basis of an agreement of the parties or on the basis of an appropriately pleaded prayer for partition. See also, Muhlrad v. Muhlrad, 375 So. 2d 24 (Fla. 3rd DC…
  • Sanders v. Sanders, 351 So. 2d 1126 (Fla. 2d DCA 1977)
    …may serve as a basis for division of property when appropriate to serve alimony or special equity considerations, it may not serve as a basis for partition. Compare Butcher v. Butcher, 239 So. 2d 855 (Fla. 2d DCA 1970) with Coykendall v. Coykendall, 260 So. 2d 558 (Fla. 2d DCA 1972). In view of what we have said we must reverse that part of the final judgment in which the court ordered partition. We remand the case to the trial court so that it may allow for the filing of such appropriate supplemental pleadi…

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