Adkins v. Edwards

• Decision Date: 23 July 1975
• Docket Number: No. 74--1249,74--1249
• Citation: 317 So.2d 770
• Parties: Charles Bernard ADKINS, Appellant, v. Linda C. EDWARDS, Appellee.
• Court: Florida District Court of Appeals

Page 770

317 So.2d 770

Charles Bernard ADKINS, Appellant, v.Linda C. EDWARDS, Appellee.

No. 74--1249.

District Court of Appeal of Florida, Second District.

July 23, 1975.

Gary C. Simons, Savage, Krim & Simons, Ocala, for appellant.

D. J. Bradshaw, Bradshaw, Wagner & Mountjoy, Inverness, for appellee.

SCHEB, Judge.

The appellant(ex-husband) appeals form a final judgment partitioning the parties' former marital home where appellee(ex-wife) was allowed a set-off for reasonable rental value against appellant's award of reimbursement for mortgage payments, taxes and insurance.

Upon dissolution of their marriage on August 8, 1972, the parties became tenants in common of their former marital home, previously held by them as tenants by the entireties.The ex-husband, as required by the judgment of dissolution, continued to pay the mortgage payments, taxes and insurance while the ex-wife resided upon the property.On November 4, 1972, the ex-wife remarried and vacated the premises.The ex-husband then moved into the home while continuing the payments as aforesaid.

In April, 1974, the ex-wife brought suit for partition of the former marital homeplace.The ex-husband counterclaimed for an allowance for the mortgage payments, taxes and insurance premiums advanced by him.Answering, the ex-wife sought an accounting for the reasonable rental value of the premises during the period of her ex-husband's occupancy.While the parties stipulated as to the reasonable rental value during this period, the ex-husband contested liability for any rental value.

The trial court held the ex-wife entitled to one-half of the reasonable rental value of the property for the period of time her ex-husband exclusively occupied it, said sum to be credited against his entitlement to one-half of the mortgage payments, taxes and insurance paid by him after his ex-wife's remarriage.

The ex-husband seeks reversal of the trial court's judgment to the extent the ex-wife was granted a set-off for the reasonable rental value of the property during his period of exclusive occupancy.We affirm the trial court's judgment.

Appellant seeks reversal upon authority of Seesholts v. Beers, Fla.App.4th1972, 270 So.2d 434.There, our sistercourt held in a partition suit that an ex-wife tenant in common was not entitled to claim one-half of the reasonable rental of the former marital home where the ex-husband tenant in common did not hold adversely to her.In Seesholtsthe court applied the common law rule adopted by the Supreme Court of Florida in 1875 in Bird v. Bird, 15 Fla. 424.This case involved farm crops, and set out the rule that when one cotenant has exclusive possession of lands owned in common with another and uses these lands for his own benefit and does not receive rents or profits therefrom, he is not accountable to his cotenant out of possession, unless such cotenant holds adversely or is out of possession as a result of ouster or equivalent...