LINDA K. GOLDBERG, APPELLANT,
v.
GLEN Z. GOLDBERG, APPELLEE
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Linda Goldberg appealed an order denying her motion to amend her petition in a dissolution of marriage action to add claims regarding ownership of a condominium held in her in-laws' names. The court reversed, holding that denial of the amendment was an abuse of discretion because the property claims should be litigated in the same dissolution action rather than in a separate suit.
The court held that it was an abuse of discretion to deny the petitioner's motion to amend because the amendment was timely, the respondents would have adequate opportunity to respond defensively, the respondents' rights would not be prejudiced, and the petitioner's rights would be prejudiced if the property claims were not presented in the dissolution action.
[1] A trial court abuses its discretion by denying a motion to amend a petition when the amendment is not untimely, would not prejudice the opposing party, and is necessary t…
[2] Claims regarding ownership interests and special equities in property should be litigated within a dissolution of marriage action rather than in a separate lawsuit.
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Join FLexlaw to unlock all legal intelligence“it was an abuse of discretion to deny the petitioner's motion to amend”
The court's holding that the trial court erred in denying the amendment motion
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Join FLexlaw to unlock all legal intelligenceLinda Goldberg sought to amend her petition in a dissolution of marriage action to allege that a condominium in which the parties resided, titled to h…
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CHARLES CARROLL, Associate Judge.
This is an interlocutory appeal by the petitioner in an action for dissolution of marriage, from an order denying without prejudice her motion to amend the petition.
By the amendment of the petition which was sought, the petitioner alleged that it had been considered by her that the condominium in which the parties had resided, title to which was in the respondent’s parents, was owned by the petitioner and her husband, through gift thereof to them by the husband’s parents, and that the latter (who were to be added as respondents) held title to the apartment in trust for petitioner and her husband; and, predicated thereon, petitioner sought by such amend ment of her petition to establish her ownership interest in the condominimum apartment and a special equity in the husband’s interest therein.
The petitioner’s application for leave to amend was not untimely, and it was made at a stage of the action which would have afforded the respondents opportunity to plead defensively thereto. Cf. Airlift Inter., Inc. v. Linee Aeree Italiane, Fla. App.1968, 212 So. 2d 109. Nor does it appear otherwise that the rights of the respondents would have been prejudiced by allowance of the amendment. See Rule 1.-190(a) and (e) F.R.C.P. On the contrary, the rights of the petitioner with respect to establishing her interest and claim of an equity in property might be prejudiced where such were not presented in the action for dissolution of marriage. See Finston v. Finston, 1948, 160 Fla. 935, 37 So. 2d 423. This, rather than by a separate action, was the logical and proper cause to litigate those claims.
For the foregoing reasons, and on the authority of Fields v. Fields, 160 Fla. 561, 35 So. 2d 722, which is closely in point, we hold it was an abuse of discretion to deny the petitioner’s motion to amend. In Fields the Supreme Court said:
“It may be admitted that the claim of a third party in the home alleged to be owned by the entireties complexes the situation, but this is not a recognized basis for dismissing the bill. It is an impressive example of the complicated human relations that are now precipitating suits of this kind that the rules of procedure should be equal to and not be permitted to break under. It would not be difficult to generate two law suits from the situation but the divorce, the title to the home, the matter of alimony and the matter of restitution are all so involved that the same evidence may have to do with each of them so there is every reason whey they should be adjudicated in one suit and we are shown no reason why they should not be considered together. Allegations of the amended bill are sufficient to show merit.”
Having concluded that the court was in error in denying the petitioner’s motion to amend, the order thereon which is appealed is hereby reversed.
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Citator
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Rosenberg v. N. Am. Biologicals, Inc., 413 So. 2d 435 (Fla. 3d DCA 1982)…dissolution proceeding, it was error for the trial court to find that the actions against the corporation, even if viable, be brought and litigated in a separate proceeding. Fields v. Fields, 160 Fla. 561, 35 So. 2d 722 (1948); Goldberg v. Goldberg, 309 So. 2d 599 (Fla. 3d DCA 1975). See also Freidus v. Freidus, 89 So. 2d 604 (Fla.1956); Feldman v. Feldman, 390 So. 2d 1231 (Fla. 3d DCA 1981); Couture v. Couture, 307 So. 2d 194 (Fla. 3d DCA 1975) (court not empowered to enter order against corporation not a pa…
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Goldberg v. Goldberg, 327 So. 2d 828 (Fla. 3d DCA 1976)…rder on amended petition for dissolution of marriage and final judgment of ejectment in which Harry Goldberg, father of the husband, cross-appeals. An interlocutory appeal was previously taken in this cause. See Goldberg v. Goldberg, Fla.App. 1975, 309 So. 2d 599. This was a bitterly contested divorce action in which the respondent husband’s parents were joined as parties. The trial court referred the cause to a special master who filed an extensive report reciting findings of fact and recommendations. Among…
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Lisbeth M. Nielsen Cole v. Cole, 937 So. 2d 261 (Fla. 4th DCA 2006)…o fashion a final judgment under Chapter 61, Florida Statutes (2005). See Hallmark Builders, Inc. v. Hickory Lakes of Brandon, Inc., 458 So. 2d 45 (Fla. 2d DCA 1984); Johnson v. Johnson, 454 So. 2d 797, 799 (Fla. 4th DCA 1984); Goldberg v. Goldberg, 309 So. 2d 599, 600 (Fla. 3d DCA 1975). We dismiss the petition directed at the dissolution of the lis pendens as moot, because the lis pendens at issue expired on June 21, 2006, one year after it was filed. SHAHOOD and GROSS, JJ., concur. WARNER, J., dissents…
Authorities Cited
- Roslyn S. Finston v. Finston, 160 Fla. 935 (Fla. 1948)
- Hattie Virginia Fields v. Fields, 160 Fla. 561 (Fla. 1948)
- Airlift Int'l, Inc. v. Linee Aeree Italiane, 212 So. 2d 109 (Fla. 3d DCA 1968)