Bianchini v. Bianchini

• Decision Date: 15 August 1979
• Docket Number: No. 78-1459,78-1459
• Citation: 374 So.2d 620
• Parties: Linda M. BIANCHINI, Appellant, v. Francis W. BIANCHINI, Appellee.
• Court: Florida District Court of Appeals

Page 620

374 So.2d 620

Linda M. BIANCHINI, Appellant, v. Francis W. BIANCHINI, Appellee.

No. 78-1459.

District Court of Appeal of Florida, Fourth District.

Aug. 15, 1979.

Robert L. Gossett, of Bunin & Gossett, Hollywood, for appellant.

Larry S. Weaver, of Cunningham & Cunningham, West Palm Beach, for appellee.

LETTS, Judge.

The wife here appeals the portion of a final judgment of dissolution which ordered the marital residence to be sold within six (6) months and restricted the wife and two minor childrens' possession of said property to that six month period. We reverse.

It is established law that a wife may be entitled to the use and occupancy of the marital home formerly held as a tenancy by the entirety so long as she remains unmarried And has unmarried minor and dependent children, Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977). ¹ It is equally well established that tenants in common should bear the obligations outstanding against any joint property equally, Singer, supra. All this being so, we have no hesitation in reversing the trial judge's conclusion that the property be sold, especially since no formal pleadings requesting partition were ever filed (see Hazelwood v. Hazelwood, 345 So.2d 819, 821 (Fla. 4th DCA 1977).

However we note that in Singer, supra, there was no question about the father's ability to provide for his children, whereas there might be in the case at bar. The Husband now before us is already commanded by the final judgment to pay $300.00 per month child support and one-half of the expenses on the house until sold (a sum of at least $200.00 more each month) resulting in a grand total of no less than $6,000 per year. Yet the record indicates his total gross annual income may be no more than that. (It is of course also argued that he does in fact have ability to produce money when needed).

It would be ludicrous for an appellate court to invariably require that the existing family residence be maintained for the wife during the minority of any children in her custody if it were patently obvious that the combined income of the parties would not permit it. Assuming that this problem was what Judge Futch had in mind when he ordered that the house be sold, we therefore remand this case for reconsideration of the award of $70.00 per week for the children. This reconsideration should take into account the fact that the husband, by this decision, is required to pay half the cost of maintaining the home for the next nine...