Briner v. Briner
| Citation | 425 So.2d 211 |
| Decision Date | 19 January 1983 |
| Docket Number | No. 82-533,82-533 |
| Parties | Babette Ruth BRINER, Appellant, v. Gene Larue BRINER, Appellee. |
| Court | Court of Appeal of Florida (US) |
Stephen M. Bell, Plantation, for appellant.
Herbert H. Rollnick of Robert D. Hurth, P.A., Pompano Beach, for appellee.
This is an appeal from an order terminating an ex-wife's exclusive possession of the marital home subsequent to her second marriage and divorce. We reverse.
The marriage of appellant Babette Ruth Briner and appellee Gene LaRue Briner was ended by final judgment of dissolution rendered April 3, 1974. The wife received custody of their three minor children and the husband was required to pay child support, but no rehabilitative or permanent alimony. Paragraph three of the judgment made the following disposition of the parties' jointly owned marital residence:
[T]hat title to said home shall remain in both parties, however, the Petitioner-Wife is to have possession of the said real property until such time as the wife remarries, the youngest child reaches his or her majority, the wife ceases to live on the premises with the child or children, whichever occurs first, the wife is to make the mortgage payments on the marital residence, and in the event of the future sale of the said real property the Wife is to receive credit in addition to her equity therein on all payments on principal paid by her from date hereof.
The wife remarried on July 5, 1974, and gave birth to another child in January, 1975. She resided with her second husband for only six months and they were divorced in June of 1976. Throughout this time the wife remained in exclusive possession of the home.
On July 16, 1979, ex-husband Briner filed petitions for change of custody, partition, and compensation for the reasonable rental value of the property. The wife opposed the husband's petitions, and filed her own counter-petition for modification, asserting that the husband had waived his right to oust her from possession and that she should continue to have possession as an incident of child support. Subsequently, the trial court accepted the recommendation of a general master that custody remain with the mother but that the wife's possession of the former marital residence be terminated because of her remarriage and without regard to the circumstances occurring after the remarriage.
An award of exclusive possession of real property is usually made for some purpose of maintenance. Sistrunk v. Sistrunk, 235 So.2d 53, 55 (Fla. 4th DCA 1970). It may, for example, aid a spouse with personal problems, Lange v. Lange, 357 So.2d 1035 (Fla. 4th DCA 1978); benefit the minor children, McMaster v. McMaster, 379 So.2d 189, 190 (Fla. 4th DCA 1980), and Richardson v. Richardson, 315 So.2d 513, 514 (Fla. 4th DCA 1975); or serve some similar purpose. Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980). 1 So long as exclusive possession rests with one spouse, the other is deprived of his beneficial enjoyment of the property or the right to seek partition thereof. For this reason an award of exclusive possession has been limited to unique circumstances, usually involving the custody of children, where a need exists to vest continuing possession of the property in one spouse for a limited period of time, such as the time when the children come of age. Labeling exclusive possession as a property right or as simply a form of child support or alimony is of little use beyond identifying the original rationale upon which the award was predicated: "The critical question is whether the award is equitable and just given the nature of the case." Duncan, at 952.
The remarriage of a wife awarded exclusive possession has been deemed a sufficient change in circumstances to justify a modification of the provision for exclusive possession and to confer on the husband standing to maintain an action for partition. See Hazelwood v. Hazelwood, 345 So.2d 819 (Fla. 4th DCA 1977). The reason most frequently assigned for authorizing termination of possession upon remarriage is that a former spouse should not be obligated to provide shelter for the wife's new spouse. Abella-Fernandez v. Abella, 393 So.2d 40, 41 (Fla. 3d DCA 1981); Lambert v. Lambert, 403 So.2d 484, 486 (Fla. 1st DCA 1981); and Caldwell v. Caldwell, 400 So.2d 1270, 1272 (Fla. 5th DCA 1981). However, even where partition of real property is available as a matter of right, such right may be waived or the claimant may be estopped from asserting the right. Condrey v. Condrey, 92 So.2d 423 (Fla.1957). In addition, as noted above, a provision for exclusive possession is subject to...
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Martin v. Martin
...and just," has refused to apply woodenly the rule that remarriage results in termination of exclusive possession. In Briner v. Briner, 425 So.2d 211 (Fla. 4th DCA 1983), the mother received exclusive possession of the home until she remarried, the youngest of three children reached majority......
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Wilson v. Wilson, 84-2118
...364 (Fla. 1st DCA 1984). The same holds true for modification of a provision for exclusive possession of realty. See Briner v. Briner, 425 So.2d 211 (Fla. 4th DCA 1983). In our view, the recent development in the law governing resident restriction clauses, see, e.g., McClay v. McClay, 447 S......
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Farkas v. Farkas, 82-417
...which was incorporated into the final judgment. We therefore immediately distinguish the rationale in cases like Briner v. Briner, 425 So.2d 211 (Fla. 4th DCA 1983) where no contractual rights are involved. "Generally, where a property settlement agreement has been executed prior to a disso......