DOROTHY ALLEN HARDER, APPELLANT,
v.
FREDERICK D. HARDER, APPELLEE
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In this divorce case, the Florida District Court of Appeal reversed a trial court's order requiring the wife to convey all her remaining property to the husband as a property settlement, while affirming the award to the wife of the husband's interest in the marital home as lump sum alimony. The court held that absent an agreement or appropriate pleadings, a chancellor lacks authority to effect a property settlement between divorcing parties.
The trial court lacked authority to require the wife to convey all her remaining property to the husband, as this constituted an unlawful property settlement without an agreement or appropriate pleadings. However, the award of the husband's interest in the marital home to the wife was proper as lump sum alimony, which falls within an exception to the general rule prohibiting property settlements by the chancellor in divorce actions.
[1] In the absence of an agreement or appropriate pleadings, a court is without authority to effect a property settlement between parties to a divorce action and cannot dispo…
[2] Upon divorce, property held as an estate by the entirety automatically becomes owned by the parties as tenants in common.
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Join FLexlaw to unlock all legal intelligence“in the absence of an agreement between the parties or appropriate pleadings a chancellor is without authority to effect what might amount to a property settlement between the parties to a divorce action and cannot dispose of the property belonging to the parties as an incident to the divorce”
Establishes the core rule that trial courts lack authority to effect property settlements in divorce without agreement or appropriate pleadings
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Join FLexlaw to unlock all legal intelligenceDorothy and Frederick Harder were divorcing spouses. The trial court awarded the jointly owned marital home to the wife and required the husband to co…
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This is an appeal by a wife, defendant-counterclaimant below, from a final judgment of dissolution of marriage. The judgment awarded to the wife the jointly owned marital home and required the husband to convey to the wife all of his right, title and interest in and to the home in lieu of alimony. The court then required the wife to convey all of her right, title and interest in and to all of her remaining property to her husband. The property involved was jointly owned by the parties and consisted of real and personal property.
A line of cases arises from F.S. § 689.15, F.S.A., wherein the last sentence provides: “ . . . and in cases of estates by entirety, the tenants, upon divorce, shall become tenants in common.” The courts have stated that in the absence of an agreement between the parties or appropri*477ate pleadings a chancellor is without authority to effect what might amount to a property settlement between the parties to a divorce action and cannot dispose of the property belonging to the parties as an incident to the divorce. Banfi v. Banfi, Fla.App.1960, 123 So.2d 52; Latta v. Latta, Fla.App.1960, 121 So.2d 42; Bell v. Bell, Fla.App.1959, 112 So.2d 63. The courts have affirmed this rule in Rankin v. Rankin, Fla.App.1972, 258 So.2d 489; Steinhauer v. Steinhauer, Fla.App.1971, 252 So.2d 825; Massey v. Massey, Fla.App.1967, 205 So.2d 1.
By virtue of F.S. § 689.15, F.S.A. and Florida case law the property that had been owned jointly by the husband and wife as tenants of an estate by the entirety during marriage, automatically became owned by the parties after divorce as tenants in common. Sistrunk v. Sistrunk, Fla.App.1970, 235 So.2d 53. The decree appealed by the wife concerning her conveyance of all right, title and interest in all her property other than the marital home is reversed since this would amount to an unlawful property settlement by the chancellor.
The rule stated above is not applicable involving the award by the chancellor to the wife of the husband’s interest in the marital home. This award comes within the exception to the rule that upon the granting of a divorce the court may award the husband’s interest in such property to the wife as lump sum alimony. Reid v. Reid, Fla.1954, 68 So.2d 821; Bildner v. Bildner, Fla.App.1969, 219 So.2d 749; Webb v. Webb, Fla.App.1963, 156 So.2d 698; Gonzalez v. Gonzalez, Fla.App.1963, 156 So.2d 206; Bergh v. Bergh, Fla.App.1961, 127 So.2d 481; Bailey v. Bailey, Fla.App.1961, 126 So.2d 165; Kilian v. Kilian, Fla.App.1957, 97 So.2d 201.
The final judgment is affirmed except for that provision in the final judgment concerning the wife’s conveyance to the husband of all of her right, title and interest in and to all her remaining property which we reverse.
Affirmed in part and reversed in part.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Niemann v. Niemann, 294 So. 2d 415 (Fla. 4th DCA 1974)…d of the home, office building, automobiles, and boats constitutes an abuse of discretion since it is tantamount to the imposition of a property settlement by the court. Coscia v. Coscia, Fla.App.1972, 262 So. 2d 254; Harder v. Harder, Fla.App.1972, 264 So. 2d 476. The court’s authority to effect a change in the title to the property of the parties in a dissolution of marriage is restricted to an award of lump sum alimony, a determination of a special equity, a partition of the property, or a division based…
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Monserrate B. McNAUGHTON v. McNAUGHTON, 332 So. 2d 673 (Fla. 3d DCA 1976)…rectly contends that it was error for the court to order the sale of the home in 1980. Real property held as an estate by the entireties is not automatically subject to sale as a part of a dissolution of marriage. See Harder v. Harder, Fla.App.1972, 264 So. 2d 476. We do not find that the wife consented to the injection of that issue into the trial. The order for a future sale is improper for the additional reason that the youngest child will be 12 years old in 1980. Unless there is a change in circumstances,…
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Rebia Gladys Sharpe v. Sharpe, 267 So. 2d 665 (Fla. 3d DCA 1972)…ies” —it having already been observed that there was “a counterclaim asking for a partition of all the real and personal property held as an estate by the en-tireties”. As recently as July 11, 1972, this Court, in Harder v. Harder, Fla.App. 3, 1972, 264 So. 2d 476-477, approved and cited Rankin-, observing that a “line of cases arises from F.S. § 689.15, F.S.A., wherein the last sentence provides: ‘. . . and in cases of estates by entirety, the tenants, upon divorce, shall become tenants in common.’ The court…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (17 total)
- Banfi v. Enrico Luigi Banfi, 123 So. 2d 52 (Fla. 3d DCA 1960)
- Sistrunk v. Sistrunk, 235 So. 2d 53 (Fla. 4th DCA 1970)
- Rankin v. Rankin, 258 So. 2d 489 (Fla. 2d DCA 1972)
- Latta v. Parker A. Latta, 121 So. 2d 42 (Fla. 3d DCA 1960)
- Emil Rossodivita v. The King's Surf Ltd., 252 So. 2d 825 (Fla. 4th DCA 1971)
- Steinhauer v. Lossie S. Steinhauer, 252 So. 2d 825 (Fla. 4th DCA 1971)
- Reid v. Reid, 68 So. 2d 821 (Fla. 1953)
- Bergh v. Bergh, 127 So. 2d 481 (Fla. 1st DCA 1961)
- Allie Pittman v. Mehaffey, 127 So. 2d 481 (Fla. 1st DCA 1961)
- Bell v. Bell, 112 So. 2d 63 (Fla. 3d DCA 1959)