Battista v. Battista, 91-146
| Decision Date | 04 September 1991 |
| Docket Number | No. 91-146,91-146 |
| Citation | 585 So.2d 459 |
| Parties | Robert B. BATTISTA, Appellant, v. Sara Duese Stevenson BATTISTA, Appellee. 585 So.2d 459, 16 Fla. L. Week. D2325 |
| Court | Florida District Court of Appeals |
Robert B. Battista, pro se.
Zelda J. Hawk, Gainesville, for appellee.
The appellant/former husband appeals from the trial court's order denying his petition for declaratory relief and awarding attorney's fees to the appellee/former wife. We affirm in part and reverse in part.
The parties were divorced in April 1988. The final judgment awarded exclusive possession of the marital home to the former wife for the benefit of the minor child until the minor child reached the age of majority, the former wife remarried, or the minor child ceased living in the home. In November 1989, the primary physical residence of the minor child was changed to be with the former husband, and the marital home was subsequently sold. Before the sale proceeds were disbursed, the former husband filed a petition for declaratory relief pursuant to Chapter 86, Florida Statutes (1989), alleging that he was entitled to rent from the former wife for the period of time after the minor child ceased living in the marital home until it was sold and that he was not liable for any repairs to the marital home he did not authorize. The former wife defended and sought attorney's fees under Sec. 57.105 and Sec. 61.16, Florida Statutes (1989). After a hearing on the petition, the trial court found he had jurisdiction under Chapters 61 and 86, Florida Statutes (1989). The court denied the former husband's petition, finding that the claim for rent was a breach of appellant's agreement with the former wife in which he had abandoned his request for rent and further that no ouster occurred. The trial court also awarded attorney's fees to the former wife.
The former husband asserts that the trial court erred in (1) awarding attorney's fees to the former wife under Chapter 61, Florida Statutes (1989) based upon her successful defense of the claim for rent and repairs, and (2) awarding less than the requested amount of attorney's fees without setting forth specific findings.
As to the first issue, we hold that the trial court did not have a basis under Chapter 61 to adjudicate the questions of rent and repairs. The former wife's reliance upon Brandt v. Brandt, 525 So.2d 1017 (Fla. 4th DCA 1988), is misplaced, since Brandt truly involved an action by one former spouse for reimbursement pursuant to a final judgment of dissolution which incorporated by reference an agreement setting out the respective parties' obligations with regard to the property. In the present case, the former husband simply petitioned the court to determine the rent owed by one tenant in common to another, based upon the former husband's argument that the former wife's actions constituted ouster as to him.
The parties' stipulation, dated November 13, 1989, does not confer jurisdiction upon the court. This document was entitled "Stipulation Regarding Minor Child." All but one paragraph of this stipulation dealt with custody and support of the minor child. Paragraph 8, however, concerned an agreement between the parties for listing the former marital residence for sale. Paragraph 8 recited that the parties had agreed upon a listing agent and price. The former husband was to make immediate payment for one half of major repairs on the property, but as to minor repairs ($50 or less) the wife would be entitled to receive a credit at closing. This portion of the stipulation was not adopted by the court through the mechanism of a court order. The parties had already become tenants in common by operation of law, and the wife's right to exclusive occupancy under the terms of the original divorce decree expired when the minor child no longer lived in the marital home.
The former husband's petition for declaratory relief was not founded upon the jurisdiction acquired by the court over the parties in the divorce proceedings. It was nothing more than a complaint filed by one cotenant against another. 1 The statute allowing fees for proceedings related to dissolution of...
To continue reading
Request your trial
-
Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, P.A. v. Mullin
...v. Sierra, 505 So.2d 432 (Fla.1987). Consequently, the denial of a fee award on that basis is without merit. Compare Battista v. Battista, 585 So.2d 459 (Fla. 1st DCA 1991); Berger v. Berger, 573 So.2d 952 (Fla. 4th DCA 1991) with Kass v. Kass, 560 So.2d 293 (Fla. 4th DCA 1990). Contrary to......
-
Bane v. Bane
...under chapter 61 and did not pertain to enforcement or modification of the final judgment of dissolution. See, e.g., Battista v. Battista, 585 So.2d 459 (Fla. 1st DCA 1991); Robinson v. Swaim, 419 So.2d 414, 415 (Fla. 2d DCA 1982). In Battista, for example, the First District reversed an aw......
-
De Campos v. Ferrara
...the agreement as incorporated into the judgment, section 61.16(1) is applicable to the proceedings below. Cf. Battista v. Battista, 585 So.2d 459, 461 (Fla. 1st DCA 1991) (reversing award of section 61.16(1) fees as petition for declaratory judgment, which was a separate action, was not fil......
-
Fortner v. Fortner, 93-00597
...in any proceeding and his work was regarded as "peripheral," he was not entitled to fees under section 61.16. In Battista v. Battista, 585 So.2d 459 (Fla. 1st DCA 1991), the final judgment of dissolution created a tenancy in common concerning the marital home. In a subsequent action for dec......