HELEN O. DAVIS, WIFE, APPELLANT,
v.
BRYAN J. DAVIS, HUSBAND, APPELLEE
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In a divorce case involving a 28-year marriage with no children, the appellate court upheld the trial court's denial of the wife's request for lump sum alimony in the form of the husband's interest in the marital home, but reversed the trial court's order requiring sale of the home, holding that absent special circumstances, a dissolution complaint with only a partition prayer cannot mandate sale of jointly owned property.
The court held that the trial court properly exercised its discretion in denying lump sum alimony in the form of the marital home given the parties' equal assets and retirement benefits despite the long marriage. However, the court held that ordering sale of the marital home was improper because a dissolution complaint with only a partition prayer, lacking award of lump sum alimony, special equity, or partition agreement, is insufficient to mandate such a sale.
[1] A trial court has discretion to award or deny lump sum alimony.
[2] A complaint for dissolution of marriage seeking partition of a marital home is insufficient to order its sale if there is no award of lump sum alimony, special equity, or…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A complaint for dissolution of marriage which includes only a prayer for partition, but which does not otherwise conform to Chapter 64, Florida Statutes (1973), is insufficient to order the sale of a marital home, where there is no award of lump sum alimony, special equity or agreement to partition.”
Establishes the legal standard that forced sale of marital property requires more than a bare partition prayer in a dissolution complaint.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHelen and Bryan Davis had been married for 28 years with no children. Both worked throughout the marriage and were retired with similar income and sub…
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BOARDMAN, Acting Chief Judge.
Appellant/wife seeks review of a final judgment in an action for dissolution of marriage. She attacks the failure of the court to award her the husband’s interest in the marital home, held as a tenancy by the entireties, as lump sum alimony, and the final judgment of the court ordering the sale of this former marital residence within six months, the proceeds from which to be divided equally.
The parties had been married for 28 years and have no children of that marriage. Both had worked throughout the marriage and are now retired, each having similar income and assets. In his petition for dissolution, the husband requested the court to divide the real and personal property of the parties and appellant counterclaimed and prayed that appellee’s interest in the marital home be awarded to her as lump sum alimony.
Having considered the record and briefs of counsel, we find no error in the refusal of the trial court to grant to the wife, as lump sum alimony, the husband’s interest in the jointly owned residence, that being a matter within the discretion of the court. Schwartz v. Schwartz, Fla.App. 1974, 297 So. 2d 117. Although this was a marriage of long duration, both parties worked throughout the marriage and upon retirement had acquired equal retirement benefits and had accumulated substantially equivalent assets.
However, we reverse that provision of the final judgment ordering the sale of the marital residence. A complaint for dissolution of marriage which includes only a prayer for partition, but which does not otherwise conform to Chapter 64, Florida Statutes (1973), is insufficient to order the sale of a marital home, where there is no award of lump sum alimony, special equity or agreement to partition. Wischman v. Wischman, Fla.App.1975, 310 So. 2d 428; Kamensky v. Kamensky, Fla.App. 1973, 282 So. 2d 670; Rankin v. Rankin, Fla.App. 1972, 258 So. 2d 489. Once a marriage is dissolved, the parties hold the property as tenants in common, Florida Statutes, Section 689.15 (1973).
Accordingly, the final judgment is affirmed in part and reversed in part as to the provision ordering the sale of the marital home.
GRIMES and SCHEB, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Rankin v. Rankin, 258 So. 2d 489 (Fla. 2d DCA 1972)
- Schwartz v. Schwartz, 297 So. 2d 117 (Fla. 3d DCA 1974)
- Madge G. Kinlaw v. Kinlaw, 310 So. 2d 428 (Fla. 4th DCA 1975)
- Kamensky v. Kamensky, 282 So. 2d 670 (Fla. 2d DCA 1973)