ANNA C. CARLSEN, APPELLANT,
v.
GUNNAR CARLSEN, APPELLEE
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In a dissolution of marriage case, the appellate court affirmed the trial court's decision to partition and sell the marital home but reversed the specific partition mechanism ordered. The court held that while partition sale is appropriate in divorce proceedings, it must comply with the statutory procedures outlined in Florida's partition statute rather than being ordered directly by the trial court.
The trial court properly ordered partition of the marital home as part of the dissolution relief, and partition sale is appropriate when the property cannot be practically divided in kind. However, the direct sale order must be struck and the case remanded because the judgment must comply with the statutory partition procedures in Chapter 64, Florida Statutes, including appointment of commissioners or a special master, while permitting the parties a reasonable opportunity to arrange private sale first.
[1] A trial court may proceed with a partition action when a counter-petition for partition is properly filed and substantially complies with statutory requirements.
[2] When a trial court orders partition of a jointly owned marital home incident to a dissolution proceeding, a sale is often inevitable.
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Join FLexlaw to unlock all legal intelligence“When incident to relief in a dissolution proceeding, a trial court orders partition of a homeplace belonging to husband and wife, a sale is almost inevitable.”
Establishes that partition sale is the appropriate remedy when marital home cannot be divided in kind in divorce proceedings
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Join FLexlaw to unlock all legal intelligenceThe husband and wife owned their marital home as an estate by the entireties. During dissolution proceedings, the wife attempted to establish a specia…
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SCHEB, Judge.
On this appeal from a final judgment of dissolution of marriage, the wife contends the trial court erred in ordering the partition sale of the parties’ jointly owned marital home.
The wife filed a petition for dissolution of her marriage. At trial she was unsuccessful in her attempts to establish a special equity in the marital home owned as an estate by the entireties. In his counter-petition, the husband sought a dissolution as well as partition of the homeplace with the net proceeds from the sale to be divided equally between the parties. The wife did not attempt to strike or dismiss the coun-terpetition, but rather she responded thereto denying the merits of the husband’s claim for partition. The husband’s counter-petition substantially complied with the allegations required for partition (See Section 64.041, Florida Statutes ). It was therefore appropriate for the court to proceed with partition as prayed for by the husband. Rankin v. Rankin, 258 So. 2d 489 (Fla. 2d DCA 1972).
On August 27, 1976, the trial judge entered a final judgment dissolving the marriage, and providing further:
. the parties hereto shall remain tenants in common of the premises commonly known as 6315-13th Street North, St. Petersburg, Pinellas County, Florida, and legally described as follows:
Lot 41, MEADOWLAWN REPLAT, according to plat thereof recorded in Plat Book 34, page 15, Public Records of Pinellas County, Florida.
The same shall be sold within 90 days from the date hereof at which time the net proceeds from the sale thereof shall be equally divided between the parties hereto.
Once the trial court makes a judgment of partition, absent a contrary stipulation by interested parties, partition should proceed under Chapter 64, Florida Statutes. See Banfi v. Banfi, 123 So. 2d 52 (Fla. 3d DCA 1960).
Section 64.061(1) provides for appointment of three suitable persons as commissioners to make the partition. However, where it is apparent from an allegation and proof that the property involved cannot be divided without prejudice to the owners, the court may under Subsection (4) appoint a special master or the clerk to sell the property at private or public sale. There was no direct allegation as to the indivisibility of the property in this case. No one, however, seriously suggests that the parties’ home-place was susceptible to division in kind. The necessity for a sale is readily apparent to us.
When incident to relief in a dissolution proceeding, a trial court orders partition of a homeplace belonging to husband and wife, a sale is almost inevitable. Commonly the trial judge affords the parties an opportunity to negotiate between themselves or arrange a private sale to a third party. We find no fault with this procedure. On the contrary, much can be said for any reasonable arrangement whereby formerly married parties are enabled to conserve their investments and property interests. In these instances, the judgment must fix some reasonable deadline for such arrangements to be completed. The judgment must provide that any judicially ordered sale, such as the one now before us, proceeds in compliance with the mechanics of partition outlined in Chapter 64. See Banfi v. Banfi, supra.
Accordingly, the last paragraph of the final judgment quoted above is stricken and this cause is remanded to the trial court for entry of an amended final judgment provid ing for partition in accordance with the mechanics of Section 64.061, et seq. The trial court may provide a reasonable period of time for the parties to conclude any private arrangements for sale or disposition of their former marital home, subject, of course, to approval of the court. Should this be permitted by the court, the amended final judgment shall provide that if disposition of the homeplace is not amicably resolved within a specified reasonable period of time that partition and sale of the property shall be handled under the last referred to statute. In all other respects, the final judgment of dissolution is affirmed.
GRIMES, Acting C. J., and OTT, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Banfi v. Enrico Luigi Banfi, 123 So. 2d 52 (Fla. 3d DCA 1960)
- Rankin v. Rankin, 258 So. 2d 489 (Fla. 2d DCA 1972)