Breland v. Breland, 89-1893
| Decision Date | 02 August 1990 |
| Docket Number | No. 89-1893,89-1893 |
| Citation | 565 So.2d 368 |
| Parties | 15 Fla. L. Weekly D2001 Debra Ann BRELAND, Appellant, v. David Eric BRELAND, Appellee. |
| Court | Florida District Court of Appeals |
Russell L. Healey of Lacy Mahon, Jr. and Mark H. Mahon, P.A., Jacksonville, for appellant.
No appearance for appellee.
Debra Breland appeals a final judgment of dissolution of marriage wherein the court awarded her exclusive use and possession of the jointly-owned marital home for as long as she remains single and at least one of the children of the marriage is a dependent minor residing with her, and provided that she be solely responsible for the mortgage payments, real estate taxes, insurance and upkeep.She complains about the provision that upon sale of the marital home, the net proceeds after any mortgage indebtedness remaining and all costs incident to the sale have been paid shall be divided equally between her and David Breland, her former husband.The court denied her credit for these expenses to the extent that they exceeded her obligation as a tenant in common, because it found such expenses to equal the reasonable rental value of her former husband's one-half interest in the property.Despite the apparent reasonableness of this approach, we are compelled to reverse because this disposition contravenes the applicable principle of law.1
The law is well established that where a court requires one party to a dissolution to pay all of the ownership expenses on jointly-owned property, such party is entitled to a credit against the other party's one half of the proceeds upon the sale of the property.Smith v. Smith, 390 So.2d 1223(Fla. 1st DCA1980);Rubino v. Rubino, 372 So.2d 539(Fla. 1st DCA1979);Fischer v. Fischer, 503 So.2d 399(Fla. 3d DCA1987);Delehant v. Delehant, 442 So.2d 1009(Fla. 4th DCA1983).Even where the party paying the ownership expenses is awarded exclusive possession of the property and the court finds that one half of the monthly payments is fair rental value for use of the other party's one-half interest in the property, this principle of law still applies on the theory that one spouse may not be required to build the other spouse's equity in the property.Smith v. Smith, 390 So.2d at 1224;Singer v. Singer, 342 So.2d 861, 862(Fla. 1st DCA1977).We express no view on the wisdom or fairness of this principle.
Because our reversal necessarily affects the lower court's overall plan for equitable...
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Sweeney v. Sweeney
...in an effort to do equity and justice to both parties. See McMahan v. McMahan, 567 So.2d 976 (Fla. 1st DCA 1990); Breland v. Breland, 565 So.2d 368 (Fla. 1st DCA 1990). We AFFIRM IN PART, REVERSE IN PART, and REMAND for further proceedings consistent with this ZEHMER and MINER, JJ., concur.......
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...sale of the property. She relies on cases from three other district courts in support of this argument. See, e.g., Breland v. Breland, 565 So.2d 368 (Fla. 1st DCA 1990); Fischer v. Fischer, 503 So.2d 399 (Fla. 3d DCA 1987); and Delehant v. Delehant, 442 So.2d 1009 (Fla. 4th DCA 1983). The u......
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...to the trial court to reconsider the entire equitable scheme. Sweeney v. Sweeney, 583 So.2d 398 (Fla. 1st DCA 1991); Breland v. Breland, 565 So.2d 368 (Fla. 1st DCA 1990). The former husband further correctly asserts that the final judgment does not comply with section 61.075(4), Florida St......
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Blauvelt v. Blauvelt, 95-01286
...proper credit against the wife's one-half of the proceeds for certain ownership expenses he is required to pay. See Breland v. Breland, 565 So.2d 368 (Fla. 1st DCA 1990). Therefore, we remand to the trial court with directions that the final judgment be clarified to allow the husband proper......