MARY E. SANDERS, APPELLANT,
v.
ROBERT L. SANDERS, APPELLEE
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Mary Sanders appealed the trial court's order partitioning the marital home in her divorce case. The appellate court reversed the partition order, finding that the trial court failed to comply with statutory procedural requirements under Florida's partition statute.
The trial court erred in ordering partition without satisfying the statutory requirements of Chapter 64, Florida Statutes. The court must comply with the procedural requirements including proper pleading allegations, appointment of commissioners or a master, and specification of the manner and conditions of sale.
[1] A trial court may partition jointly-owned property in a divorce action only if the due process requirements of Chapter 64, Florida Statutes, relating to partition, are me…
[2] A petition for dissolution of marriage seeking equitable division of property is insufficient to serve as a basis for a court-ordered partition of that property.
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Join FLexlaw to unlock all legal intelligence“a judge may partition the jointly-owned property of the parties in a divorce action only if the due process requirements of Chapter 64, Florida Statutes (1975), relating to partition are met”
Establishes the fundamental rule that partition in divorce requires statutory compliance
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Join FLexlaw to unlock all legal intelligenceThe husband filed for dissolution of marriage and requested equitable distribution of jointly-owned property, including the marital home. The wife fil…
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McNULTY, JOSEPH P. (Ret.), Associate Judge.
On this appeal, Mary E. Sanders argues that the trial court erred in ordering the partition of the marital home as part of a judgment of dissolution of marriage. For the reasons hereinafter stated we agree and reverse that portion of the judgment.
The appellee/husband filed the petition herein for dissolution. He also asked the court to make an equitable distribution of jointly-owned property. Appellant/wife then filed an answer and a eounterpetition in which she requested ownership of the marital home. After a hearing on the matter, the trial court granted the dissolution and ordered the marital home sold and the proceeds divided between the parties.
This court has long held that a judge may partition the jointly-owned property of the parties in a divorce action only if the due process requirements of Chapter 64, Florida Statutes (1975), relating to partition are met. Carlsen v. Carlsen, 346 So. 2d 132 (Fla. 2d DCA 1977); Rankin v. Rankin, 258 So. 2d 489 (Fla. 2d DCA 1972). No such compliance is evident in this case. First of all, the husband’s petition seeking division of the property does not set forth the required allegations as set forth in Section 64.041, Florida Statutes (1975). Furthermore, the final judgment itself does not provide for the appointment of commissioners or a master, as may be appropriate, in compliance with Section 64.061, Florida Statutes (1975), nor does it provide for the manner and conditions of sale pursuant to Section 64.-071, Florida Statutes (1975).
We reject Mr. Sanders’ argument that the prayer for an equitable “division” of property in his petition was sufficient to serve as a basis for the court’s order of partition. While such a prayer may serve as a basis for division of property when appropriate to serve alimony or special equity considerations, it may not serve as a basis for partition. Compare Butcher v. Butcher, 239 So. 2d 855 (Fla. 2d DCA 1970) with Coykendall v. Coykendall, 260 So. 2d 558 (Fla. 2d DCA 1972).
In view of what we have said we must reverse that part of the final judgment in which the court ordered partition. We remand the case to the trial court so that it may allow for the filing of such appropriate supplemental pleadings as may be necessary to satisfy the statutory requisites for partition. Burns v. Burns, 174 So. 2d 432 (Fla. 2d DCA 1965). In all other respects we affirm the final judgment.
GRIMES, Acting C. J., and SCHEB, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Sammons v. Sammons, 479 So. 2d 223 (Fla. 3d DCA 1985)…t be upheld as, in effect, an appropriate judgment for partition because neither the complaint nor the evidence complied with the requirements of Chap. 64, Fla.Stat. (1983), see Smith v. Smith, 399 So. 2d 1025 (Fla. 3d DCA 1981); Sanders v. Sanders, 351 So. 2d 1126 (Fla. 2d DCA 1977); O’Hara, Ms. Sammons is of course free to seek such relief after remand. Since the Colorado dissolution has rendered the couple tenants in common of the property previously held by the entireties, § 689.15, Fla.Stat. (1983), she h…
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In re the Marriage OF Barbara E. Jones, 357 So. 2d 439 (Fla. 2d DCA 1978)…arlsen, 346 So. 2d 132 (Fla.2d DCA 1977). In proceedings hereafter that procedure should be followed and the court should reserve jurisdiction to review and enforce the mechanics of partition as they are set forth in the statute. Sanders v. Sanders, 351 So. 2d 1126 (Fla.2d DCA 1977). This case is reversed and remanded for the entry of an award of alimony, partition of the jointly owned property, both real and personal, pursuant to Chapter 64 to the extent that said property is not voluntarily sold by the part…
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Weider v. Weider, 402 So. 2d 66 (Fla. 4th DCA 1981)…n v. Niemann, 294 So. 2d 415 (Fla. 4th DCA 1974), cert. dismissed, 312 So. 2d 733 (Fla.1975). Also, the final judgment must provide for partition in accordance with the procedures set forth in Chapter 64, Florida Statutes (1979). Sanders v. Sanders, 351 So. 2d 1126 (Fla. 2nd DCA 1977); Rankin v. Rankin, 258 So. 2d 489 (Fla. 2nd DCA 1972). The failure of the pleadings in this case to satisfy the statutory requirements and the failure of the final judgment to provide for partition in accordance with the statutor…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rankin v. Rankin, 258 So. 2d 489 (Fla. 2d DCA 1972)
- Kirkland v. Johnson, 346 So. 2d 132 (Fla. 2d DCA 1977)
- Burns v. Smith Burns, 174 So. 2d 432 (Fla. 2d DCA 1965)
- Greer v. Thompkins, 239 So. 2d 855 (Fla. 1st DCA 1970)
- Butcher v. Butcher, 239 So. 2d 855 (Fla. 2d DCA 1970)
- Coykendall v. Coykendall, 260 So. 2d 558 (Fla. 2d DCA 1972)