Banfi v. Banfi, 59-659

• Decision Date: 19 September 1960
• Docket Number: No. 59-659,59-659
• Citation: 123 So.2d 52
• Parties: Victoria A. BANFI, Appellant, v. Enrico Luigi BANFI, Appellee.
• Court: Florida District Court of Appeals

Page 52

123 So.2d 52

Victoria A. BANFI, Appellant, v. Enrico Luigi BANFI, Appellee.

No. 59-659.

District Court of Appeal of Florida, Third District.

Sept. 19, 1960.

Richard H. Hunt, Michael F. Zarowny and Joseph A. Hackney, Miami, for appellant.

Louis A. Sabatino, Miami, for appellee.

HORTON, Chief Judge.

The appellant wife was the defendant below and appeals from a final decree and an amendment thereto entered in a divorce action, in which the appellee husband was awarded a divorce on the ground of extreme cruelty.

The wife counterclaimed for alimony unconnected with divorce which relief was denied by the terms of the amended final decree. The chancellor awarded a divorce to the husband and directed that all of the joint bank accounts of the parties be divided equally between them, and that all joint stock brokers' accounts as well as shares of stock be divided between the parties or sold and the proceeds divided. In addition, he directed the sale of the jointly owned improved real property in the event that the same was not sold within sixty days from the date of the decree. He awarded a Buick automobile to the wife and an Opel automobile to the husband. Attorneys' fees were awarded to counsel for both parties, which fees were, by the amended final decree, to be paid by the respective parties with the costs of the proceedings taxed against the husband.

The appellant contends that the chancellor should not have awarded the decree of divorce to the husband because the testimony was insufficient to support the grounds of extreme cruelty and lacked corroboration. Without delving into the details of the matrimonial differences between these two parties, suffice it to say that the record contains sufficient competent evidence, with adequate corroboration, to justify the findings made by the chancellor, and we will not pit our judgment in that respect against his. Ward v. Miami Lock & Hardware Co., Fla.App.1960, 119 So.2d 395.

The appellant further contends that the chancellor was in error in ordering a sale of joint stock investments and the marital home held as an estate by the entireties. We conclude that the appellant's contention in this regard has merit. The appellee's sworn complaint for divorce, in addition to setting up the necessary allegations or grounds for divorce, also alleged that the parties held joint assets in the nature of bank accounts, stocks, securities and real property, and particularly prayed the court to retain jurisdiction of the cause following a final decree of divorce, if any were entered, for the purpose of partitioning the real property theretofore held as an estate by the entireties. As a general rule, in the absence of an agreement of the parties or appropriate pleadings for such relief, a chancellor is without authority to effect what might amount to a property settlement between parties to a divorce action, and cannot dispose of property belonging to the parties as an incident to divorce. See Bell v. Bell, Fla.App.1959, 112 So.2d 63, 65 and Latta v. Latta, Fla.App.1960, 121 So.2d 42. Once the marriage is dissolved and the proportionate share of each in the estate has been fixed, the parties become tenants in common of such real property formerly held as an estate by the entireties. Section 689.15, Fla.Stat., F.S.A. Thereafter, it is up to them to determine whether the property should be partitioned or disposed of otherwise. See Benson v. Benson, Fla.App.1958, 102 So.2d 748. There are recognized exceptions, however, such as where the husband's interest in property owned by him and his wife as tenants by the entireties may be awarded to the wife as lump sum alimony (Reid v. Reid, Fla.1954, 68 So.2d 821) or where the wife may be given part or all of the husband's record interest in property owned by them as an estate by the entireties to the extent that she establishes a special equity therein based on her contributions. Heath v. Heath, 103 Fla. 1071, 138 So. 796, 82 A.L.R. 537; Foreman v. Foreman, Fla.1949, 40 So.2d 560.

The result of the chancellor's decree here, insofar as it relates to both real and personal property, was to effect a partition of the jointly owned properties of the husband and wife without observing the requirements of specific statutory direction normally applied in a suit for partition. See §§ 66.01-66.09, Fla.Stat., F.S.A. We do not infer or imply that it is a question of the jurisdiction of the chancellor to partition property between a husband and wife after the entry of a divorce decree, particularly where as here such relief was specially prayed, but the failure of the chancellor to follow the statutory requirements applicable to an action for partition. Our research discloses that on at least two occasions, the Supreme Court of Florida has sanctioned the joining of an action for divorce, alimony and other claims against a husband, as well as a claim for...