MARJORIE WISCHMAN, APPELLANT,
v.
ARTHUR F. WISCHMAN, APPELLEE
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In this dissolution of marriage case, the Florida District Court of Appeal reversed the trial court's decision to partition the marital home (a mobile home and lot) and remanded for reconsideration of alimony, holding that partition was improper due to insufficient pleadings under Florida law.
The court held that partition was improper because the pleadings were insufficient under Florida law, as the complaint included only a simple prayer for partition without either an agreement between the parties or appropriate pleadings conforming to Chapter 64 of the Florida Statutes. The court remanded for reconsideration of the alimony issue in light of Lash v. Lash, since the trial court's denial of alimony was based on the wife receiving funds from the partition sale.
[1] A trial court cannot order partition of marital property in a dissolution proceeding if the pleadings are insufficient and there is no agreement between the parties.
[2] A trial court must reconsider an alimony award when a prior basis for denying alimony is invalidated on appeal.
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Join FLexlaw to unlock all legal intelligenceAfter approximately seven years of marriage, the husband filed for dissolution. The parties' assets consisted solely of a lot owned by the entireties …
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McNULTY, Chief Judge.
We are called upon in this dissolution of marriage proceeding to review the trial court’s ruling on the partition of the marital home, alimony, reservation of jurisdiction and attorney’s fees.
After approximately seven years of marriage appellee-husband filed a petition for dissolution of marriage. The income of the parties consisted of the husband’s social security payments plus a pension from the Railroad Retirement Fund which included a spouse’s increment while appellee was married. The total assets of the parties were a lot owned by the entireties and a jointly owned mobile home situated thereon which comprised the marital residence.
In appellee’s petition he requested partition of the land and mobile home, but appellant in her answer requested that the court give her full title and possession to both. At the final hearing, the trial judge ordered that the mobile home and lot be sold and the proceeds divided equally between the two. No alimony was awarded, but appellee was ordered to pay appellant’s attorney’s fee of $300.
Of the four points raised in appellant’s brief we find it necessary to discuss only the first — that partition of the mobile home and lot was improper because the pleadings were insufficient. We agree. This court in Rankin v. Rankin1 held under similar facts that partition was improper. There, as here, the complaint included only a simple prayer for partition; and we held that that alone was insufficient absent an agreement between the parties, or appropriate pleadings. Here, too, the record indicates that the pleadings did not conform to Ch. 64, F.S.1973, and that no agreement was made.
It appears that the court declined to award alimony because the wife would receive some funds from the partition sale. Since we have determined that partition could not be ordered, we hereby remand the case for reconsideration of the alimony issue in light of our recent decision in Lash v. Lash.2 The other two points raised by appellant are without merit.
For the foregoing reasons this case is hereby reversed and remanded for further proceedings not inconsistent herewith.
HOBSON and GRIMES, JJ., concur. . (Fla.App.2d, 1972), 258 So. 2d 489.
. (Fla.App.2d, 1975), 307 So. 2d 241.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Lash v. Lash, 307 So. 2d 241 (Fla. 2d DCA 1975)
- Rankin v. Rankin, 258 So. 2d 489 (Fla. 2d DCA 1972)