Anderson v. Anderson
| Decision Date | 10 January 1950 |
| Citation | 44 So.2d 652 |
| Parties | ANDERSON v. ANDERSON. |
| Court | Florida Supreme Court |
Birt C. Byrd, Jacksonville, for appellant.
Lewis Rhea Baxter, Jacksonville, for appellee.
The record for consideration of this case upon appeal was stipulated by attorneys for the respective parties to be substantially as follows:
1. Final decree of divorce, November 28, 1947, in addition to granting a divorce to the plaintiff in the Circuit Court, Lillie Mae Anderson, against the defendant Lee Anderson, which said parties will be hereinafter referred to as plaintiff and defendant respectively, ordered the defendant to pay to the plaintiff ten dollars per week for support of the two minor children of said parties; awarded complete custody of said two minor children of the parties, to the plaintiff; ordered that the certain real estate, a parcel 100 feet by 150 feet, owned by the parties as tenants by entirety, should be thenceforth held by them as tenants in common; and reserved jurisdiction in the said court to make such further order regarding said real estate as equity might require.
2. The defendant continued to live on said real estate and made payments on the mortgage against the same but paid nothing whatsoever to the plaintiff for the use of the property.
Further, the defendant paid no part of the amount of ten dollars per week and contributed nothing toward the support of the said two minor children up to the time the present case was instituted in the said Circuit Court.
Plaintiff remarried shortly after the divorce was granted and with the said minor children moved to another county. Defendant has not remarried and has no minor children with him.
3. On April 16, 1949, the plaintiff filed her petition against the defendant seeking judgment for $730 for seventy-three weeks of delinquent support money for said children and for further relief; the defendant contested said petition; upon hearing, the court entered judgment for the plaintiff for the sum of $730 for said support money and ordered execution on the judgment; execution was levied on the one-half interest of the defendant in said real estate and it was advertised for sale, defendant owning no other property upon which levy could be made; defendant claimed homestead exemption as against said levy and claimed $1,000 as personal exemption if the property should be sold; plaintiff filed a bill to subject said property to her judgment and to deny the defendant's claim of exemption.
The parties by their attorneys of record stipulated 'that according to the law of Florida as announced in the case of Osceola Fertilizer Co. v. Sauls, 98 Fla. 339, 123 So. 780, defendant is the head of a family residing in Florida, despite the fact that the custody of the children was awarded to the plaintiff', and requested the Court to decide the case on the record and the testimony already in the case.
The defendant moved the Court to dismiss the cause, motion denied, defendant answered, and the cause was argued and the Court entered an order decreeing the defendant's one-half interest in said property to be subject to the said $730 judgment and the levy thereunder, that said property was not exempt from forced sale nor would any part of the proceeds of such sale be exempt from satisfaction of said judgment.
Said order was dated July 14, 1949, and is set out in full in the said stipulated record of the case.
Appeal was duly taken to this court from the last mentioned order of said Circuit Court and the defendant (appellant) filed his assignments of error which stated in effect that the said Circuit Court erred in the entry of said order dated July 14, 1949, and with regard to all the substantial provisions thereof.
In giving proper consideration to this appeal, we shall first take up the question as to whether or not under the circumstances stated the said one-half interest of the defendant in said property was his homestead under Article X. Section 1, Florida Constitution, F.S.A.
Was the defendant the head of a family at the time of the entry of the order appealed from and the levy or threatened levy described in the stipulated record? Who is the head of a family within the meaning of Section 1, Article X of the Constitution of Florida exempting homesteads from forced sale must be ascertained from the facts of each case: DeCottes v. Clarkson, 43 Fla. 1, 29 So. 442. Caro v. Caro, 45 Fla. 203, 34 So. 309. Jetton Lbr. Co. v. Hall, 67 Fla. 61, 64 So. 440, 51 L.R.A.,N.S., 1121.
In the case of Osceola Fertilizer Co. v. Sauls, 98 Fla. 339, 123 So. 780, the husband and wife were divorced, the said wife and a minor child in custody of the mother moved away and the father remained on the country home place with a citrus grove thereon and 'continuously supported' his said former wife and minor child from said home place, and this court held that the said father of said child was the head of a family consisting of himself and minor child and his home place was the homestead of the father as the head of a family.
In the said last mentioned case, not only was the father living on the home place but at the same time he was supporting his minor child and divorced wife from said home place. It should also be noted here that in the said Sauls case the said homestead was all the while being used for the sole benefit of the same family as before the devorce, and the claim against the home place was prosecuted by an outside creditor.
A married woman may be the head of a family. See Bigelow v. Dunphe, 144 Fla. 330, 198 So. 13, depending upon the fact and circumstances. Jones v. Federal Farm Mtg. Corp., 138 Fla. 65, 188 So. 804. And where the husband deserts his wife, leaving her in this state with dependent children she may constitute a head of a family. Jetton Lbr. Co. v. Hall, 67 Fla. 61, 64 So. 440, 51 L.R.A.,N.S., 1121
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Bell v. Bell
...children. Such a provision may be proper under some circumstances. Pollack v. Pollack, 159 Fla. 224, 31 So.2d 253; cf. Anderson v. Anderson, Fla.1950, 44 So.2d 652. The forced sale with one-half of the proceeds going to the wife is not for the purpose of any lump sum settlement as alimony. ......
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Cilento v. State
...which the appellant raised in the court below. Just as a stipulation on a matter of law is not binding on a court, Anderson v. Anderson, 44 So.2d 652 (Fla.1950), a nolo plea does not foreclose properly preserved legal issues. "Admissions" by parties go to factual and not legal matters. See ......
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Vandiver v. Vincent, 2211
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