Cannon v. Morris, YY-271

• Decision Date: 18 December 1981
• Docket Number: No. YY-271,YY-271
• Citation: 407 So.2d 372
• Parties: George T. CANNON, Jr., Appellant, v. Linda P. MORRIS, Appellee.
• Court: Florida District Court of Appeals

Page 372

407 So.2d 372

George T. CANNON, Jr., Appellant, v. Linda P. MORRIS, Appellee.

No. YY-271.

District Court of Appeal of Florida, First District.

Dec. 18, 1981.

Michael Gillion of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, Ala., for appellant.

No appearance for appellee.

JOANOS, Judge.

The former husband appeals from a summary judgment ruling against his complaint seeking partitioning of the marital home which he owns as a tenant in common with the former wife. We reverse.

The marriage of appellant George Cannon and appellee Linda P. Morris was dissolved in 1977. In its order dissolving the marriage, the lower court incorporated a document entitled "Stipulation and Property Settlement Agreement" entered into by the parties, in which it was agreed that the wife would have the exclusive use and possession of the marital home until the minor children become 18 years of age, marry, die or become self-supporting. ¹

In 1980 appellant filed a complaint seeking a partitioning of the marital home. Appellant submitted an affidavit indicating that the appellee had remarried, and that her new husband had remodeled the home for his own purposes. The appellee moved for summary judgment, arguing that this proceeding was rendered res judicata by virtue of the property settlement agreement. Summary Judgment was granted to appellee and this appeal ensued.

Appellee had also moved for attorney's fees based on either the complete absence of a justiciable issue of law or fact, pursuant to Section 57.105, Florida Statutes (Supp.1978), or appellee's success in defeating the partitioning, pursuant to Section 64.081, Florida Statutes (1967). Without stating the basis for its order, the lower court in the order appealed from awarded attorney's fees to the appellee.

Appellant argues that the summary judgment was improper and that he was entitled to have the property partitioned. His second point is that the attorney's fee award was improper. We agree on both points.

In regard to the issue of partitioning, we must first analyze the effect of the "Stipulation and Property Settlement Agreement." If this was a true property agreement, we are confronted by the legal principle that property settlement agreements are usually not subject to modification without the consent of the parties. Johnson v. Johnson, 386 So.2d 14, 15 (Fla. 4th DCA 1980); 25 Fla.Jur.2d Family Law §§ 392-393 (1979). Further, if the agreement is not subject to modification, the appellant cannot have an immediate right to possession of the home, and, therefore, the general rule of law, that a tenant in common who has no immediate right to possession of property has no right to seek a partitioning, is applicable. Pollack v. Pollack, 159 Fla. 224, 31 So.2d 253 (1947).

However, with regard to modification of the purported property agreement, it is the contents and not the title of a document that determine whether it is in the nature of a property settlement agreement. Fleenor v. Fleenor, 35 Fla.Supp. 135, 136 (Fla. 15th Cir. 1971). In Horn v. Horn, 398 So.2d 935, 937 (Fla. 3d DCA 1981), a case involving a purported property settlement agreement, the term "exclusive use and enjoyment of the marital home" was viewed as a term of art, awarding possession of the marital home as a temporary incident of child support rather than as part and parcel of a property settlement agreement. Implicit in Horn is the recognition that child support agreements, unlike property settlement agreements, are always subject to judicial modification whenever there is a change in circumstances from the time of the award.

We believe that the rationale of the Horn case is sound. The document before us included provisions for child custody and support as well as ones pertaining to the division...