Bell v. Bell

• Decision Date: 14 May 1959
• Docket Number: Nos. 58-380,58-676,s. 58-380
• Citation: 112 So.2d 63
• Parties: Rodney O. BELL, Appellant, v. LaVerne W. BELL, Appellee. LaVerne W. BELL, Appellant, v. Rodney O. BELL, Appellee.
• Court: Florida District Court of Appeals

Page 63

112 So.2d 63

Rodney O. BELL, Appellant, v. LaVerne W. BELL, Appellee.

LaVerne W. BELL, Appellant, v. Rodney O. BELL, Appellee.

Nos. 58-380, 58-676.

District Court of Appeal of Florida,

Third District.

May 14, 1959.

Rehearing Denied June 1, 1959.

Mason & Foster, No. Miami Beach, for Rodney O. Bell.

Simons & Simons, Miami, for Laverne W. Bell.

PEARSON, Judge.

Two appeals between these parties are now lodged in this court. They were argued separately but will be considered together. The first is an appeal from an amended final decree of divorce and is brought here by the defendant-husband. In this first appeal the plaintiff-wife has filed cross assignments of error. The second appeal brought here by the plaintiff-wife, is an interlocutory appeal from a post decretal order.

The wife's complaint for divorce charged extreme cruelty. The husband answered denying the charge and cross-claimed for divorce charging adultery. The wife's reply denied the charge contained in the cross-claim. Upon these issues the case was tried and the chancellor found for the wife upon her complaint and her husband's cross-claim. The final decree, before amendment, granted the wife: (1) a divorce, (2) alimony, (3) custody of the two minor children and support, (4) attorney's fees and (5) apportioned the property of the parties as follows:

'That the parties be and they are hereby declared to be tenants in common of the real estate owned by the parties, known and described as 90 Red Maple Drive, North Levittown, Long Island, New York, and that the same be sold as reasonably soon after date as possible and no later than six (6) months from this date, and that the net proceeds thereof be divided between the parties.

'That the home presently occupied by the Plaintiff Counter-Defendant, LaVerne W. Bell, located at 995 West 32nd Street, Hialeah, Florida, and the furnishings therein, which is presently being occupied under an Agreement for Deed, be deeded by Quit-Claim Deed to the Plaintiff Counter-Defendant, LaVerne W. Bell from the Defendant Counter-Plaintiff, Rodney O. Bell, within seven (7) days from this date, and he is hereby required to make the payments therefor which presently amount to Seventy-seven Dollars ($77.00) per month each month on the date when due until said property has been fully paid for.

'That the Defendant Counter-Plaintiff, Rodney O. Bell, is hereby ordered to pay forthwith to Simons and Simons, Attorneys for Plaintiff Counter-Defendant, the sum of Five Hundred Dollars ($500.00), for counsel fees of the Plaintiff Counter-Defendant herein.

'That the Defendant Counter-Plaintiff is hereby ordered to pay forthwith to the Plaintiff Counter-Defendant the sum of _____ Dollars ($247.64) as her costs incurred in the prosecution and defense of the above styled suit.

'That the Defendant Counter-Plaintiff, Rodney O. Bell, is hereby required to continue in full force and effect those insurance policies he presently holds, and to make the necessary payments therefor, with the Prudential Life Insurance Company in the sum of Fifteen thousand Dollars ($15,000.00) including health and accident insurance therein, and the insurance with Veterans Administration United States Government in the face amount of Ten Thousand Dollars ($10,000.00) and with the Travelers Insurance Company in the face amount of Ten Thousand Dollars ($10,000.00), and the beneficiaries therein shall remain as stated in the insurance company's records as of September 13, 1957.'

The husband filed, on March 4, 1958 his 'Motion to Vacate Final Decree, Etc.' and without further testimony the chancellor, after argument, entered an amended final decree, which granted the wife: (1) a divorce, (2) reduced her alimony from $150 per month to $75, (3) custody of the two minor children and support, (4) increased the amount of attorney's fees allowed the wife from $500 to $600, and (5) changed the disposition of the property of the parties as follows:

'That the home presently occupied by the Plaintiff Counter-Defendant, LaVerne W. Bell, Located at 995 West 32nd Street, Hialeah, Florida and the furnishings therein, which is presently being occupied under the Agreement for Deed, be deeded by proper instrument to the Plaintiff for the use and benefit of the minor children. Said instrument to provide that upon Plaintiff's remarriage or death, said property to pass in fee simple to said minor children. The defendant is hereby required to make the payments for said homestead, which presently amounts to $77 (Seventy-Seven Dollars) per month. Said payments to be considered alimony and to terminate upon Plaintiff's remarriage or death.'

The husband as appellant urges: (1) that the evidence is insufficient to support the wife's decree of divorce; (2) that the chancellor abused his discretion in granting the wife custody of the two minor children of the parties, permanent alimony, court costs, one half of the proceeds from the forced sale of the parties' New York home, permanent mortgage payments on the home, insurance benefits, and counsel fees, and (3) that the chancellor ought to have granted him a divorce on the ground of adultery.

The chancellor in his amended final decree, as in his first decree, declared that the parties become tenants in common of the real estate owned by them in New York. This declaration, if the property were located in Florida, is in accord with section 689.15 Fla.Stat., F.S.A., which provides that where a husband and wife own property, real or personal, as an estate by the entirety, and a divorce is granted, they thereupon become tenants in common. See also Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727; Markland v. Markland, 155 Fla. 629, 21 So.2d 145; Andrews v. Andrews, 155 Fla. 654, 21 So.2d 205; Kollar v. Kollar, 155 Fla. 705, 21 So.2d 356; Giachetti v. Giachetti, 157 Fla. 259, 25 So.2d 658. The court further ordered that the New York property be sold and that the proceeds from such sale be divided equally between the parties. The appellant-husband questions the propriety of the chancellor's order which required sale of the property. There is no provision in the amended decree providing that any portion of the proceeds of the sale is charged with the obligation of the husband to support his former wife or his minor 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. See Bezanilla v. Bezanilla, Fla.1953, 65 So.2d 754; Reid v. Reid, Fla.1954, 68 So.2d 821; Kilian v. Kilian, Fla.App.1957, 97 So.2d 201. The chancellor's findings fail to establish any special equitable right to the property in question in either party. See Heath v. Heath, 103 Fla. 1071, 138 So. 796, 82 A.L.R. 537; Eakin v. Eakin, Fla.1958, 99 So.2d 854. It is error for the court, upon granting a divorce, to direct disposition of the parties' interest in property held by the entireties simply as an incident of the divorce. Valentine v. Valentine, Fla.1950, 45 So.2d 885. See also Boles v. Boles, Fla.1952, 59 So.2d 871.

We are not unmindful of the fact, as above indicated, that § 689.15, supra, is applicable only to real property situated in the State of Florida. New York has no statute similar to ours, but its highest court's ruling, on the effect of a divorce on property held as a tenancy by the entirety by the divorced parties, gives the same ultimate result as our statute. It was thus held in the case of Steltz v. Shreck, 128 N.Y. 263, 28 N.E. 510, 13 L.R.A. 325, that upon a divorce, the tenancy by the entirety is severed, and, a severance having taken place, each takes his or her proportionate share of the property as a tenant in common, without survivorship. This same court in a later case held that either divorced party has the right to partition. Yax v. Yax, 240 N.Y. 590, 148 N.E. 717.

Although the case of Schnitzer v. Schnitzer, Fla.1949, 40 So.2d 450, did not involve an estate by the entireties crystallizing into a tenancy in common by a dissolution of the marriage, the court in reversing, because the chancellor had ordered a forced sale of the divorced parties' real property, admonished against forced sales, without an upset price, or the making of some other satisfactory arrangement to realize a greater purchase price.

Notwithstanding the sound ruling of the Schnitzer case, the property involved is held by the parties as a tenancy in common, and since no support obligation was attached to the property, no lump sum alimony payment was to be derived from the sale of the property, and no special equities existed in the property, the chancellor erred in ordering the parties to sell the property.

Upon all of the remaining provisions of the amended final decree, upon which the husband has assigned error, the record reveals that the matters complained of were patiently tried by the chancellor. There is sufficient evidence, in the conflicting testimony he heard, to support each finding made.

The wife as cross-appellant from the amended final decree urges that the chancellor had no jurisdiction to enter the amended final decree, because there was no change in circumstances from the entry of the final decree. She also urges under an appropriate assignment of error, that the award of $600 as attorney's fee to her attorney is grossly inadequate. Because it has not been demonstrated that the chancellor abused his discretion in...