Fitzgerald v. Fitzgerald, 88-2541

• Decision Date: 09 March 1990
• Docket Number: No. 88-2541,88-2541
• Citation: 558 So.2d 122
• Parties: 15 Fla. L. Weekly D683 Nelle J. FITZGERALD, Appellant, v. Geary S. FITZGERALD, Appellee.
• Court: Florida District Court of Appeals

Page 122

558 So.2d 122

15 Fla. L. Weekly D683

Nelle J. FITZGERALD, Appellant, v. Geary S. FITZGERALD, Appellee.

No. 88-2541.

District Court of Appeal of Florida First District.

March 9, 1990.

Barry L. Zisser and Nancy N. Nowlis, Jacksonville, for appellant.

William T. Lassiter, Jr., Jacksonville, for appellee.

CAWTHON, Associate Judge.

In this appeal from an order granting partition of a marital home, the former wife appeals two special equities granted her former husband. We reverse.

The marriage of the parties was dissolved on May 10, 1978. The former wife was given custody of the two children and the exclusive use and occupancy of the former marital home so long as she remained unmarried and at least one minor child resided with her. Paragraph 6 of the Final Judgment of Dissolution of Marriage provided:

As and for a contribution to the support and maintenance of the wife, the husband shall pay, directly to the wife, on or before the first day of June 1978, and thereafter, until a total of nine monthly payments have been made, an amount equal to the total mortgage, taxes, and insurance payment attributable to the residence of the parties located at ... After nine such monthly payments have been made the husband shall pay to the wife, on or before the first day of each month thereafter, while the parties own the said property as tenants in common, an amount equal to one-half of the said mortgage, taxes, and insurance payment, and the wife shall be responsible for payment of the remaining one-half.

In February 1987, the former husband filed a complaint seeking partition of former marital home. At first, the former husband sought equal division of the sale proceeds. The former wife answered by claiming entitlement to a special equity for the mortgage payments and cost of improvements borne entirely by her; the former wife also filed a counter-petition for partition. The former husband answered the counter-petition by denying that the former wife had any right to a special equity.

A bench trial was held on the petitions where it was disclosed that the youngest child left her mother's residence to live with her father in February 1981. At that time, the former husband stopped contributing to the mortgage. In August 1983, the child returned to her mother's residence; the child remained a minor until December 16, 1985. The trial court found that there had been an ouster by the wife in February 1981, and it was found that $300.00 was the rental value of the home.

In the amended final judgment of partition, the trial court awarded two special equities to the husband. ¹ The first equaled one-half of the amount by which the principal sum of the mortgage was reduced by the nine mortgage payments made by the former husband from June 1978 through February 1979. The former wife had argued to the trial court that the former husband was not entitled to this special equity as these payments were made for her support. Obviously, this argument was unavailing.

The second special equity awarded to the husband was equivalent to one half of the rental value of the former marital home from March 1981 through June 1988. In February 1981, the parties' youngest child moved away from the former marital home to live with the former husband. However, the child returned to the former wife's residence in August 1983 where she remained until reaching the age of majority in December 1985. The former wife argued below that this special equity was erroneous because there was no evidence before the trial court concerning the property after October 1987, the time of the bench trial. On appeal, the former wife argues the second special equity is erroneous because it exceeds the amount she claimed for repairs; a claim for rent can only be made to offset a claim for improvements, argues the former wife.

As for the former husband's first special equity, we agree that this award was erroneous. The final judgment of dissolution plainly provides that the former husband was to pay as support the first nine months of mortgage and tax obligations. It is within a trial court's discretion to award the costs of mortgage, insurance and tax payments as support, and in such a circumstance, a paying party is not entitled to credit for those expenditures. See Pastore v. Pastore, 497 So.2d 635 (Fla.1986).

As for the second special equity awarded, we also agree with the former wife that this award was erroneous. As previously noted, the former husband was awarded one-half of the amount of rental value of the former marital home from March 1981 through June 1988. This award was premised on the finding that the former husband was "ousted" from the former marital home.

In Barrow v. Barrow, 527 So.2d 1373 (Fla.1988), the Florida Supreme Court settled a dispute among the districts by holding a cotenant out of possession of property is entitled to a claim of rental value "solely as an offset against the claim of the cotenant [in possession] for the cost of maintaining the property ..." Id. at 1377. Though one cotenant may have exclusive possession, he is not accountable to the cotenant out of possession unless the possessing cotenant receives rents or profits from the land or holds adversely or as the result of an ouster. The Barrow court held that

the possession of a tenant in common is presumed to be the possession of all tenants until the one in possession communicates to the other the knowledge that he or she claims the exclusive right or title and there can be no holding adversely or ouster by the cotenant in possession unless the adverse holding is communicated to the other ...

Id. (emphasis added).

In Barrow, the Supreme Court explicitly reaffirmed its decision in Coggan v. Coggan, 239 So.2d 17, 19 (Fla.1970) which also stated the common law rule was that the possession of a tenant in common "is presumed to be the possession of all cotenants until the one in possession brings home to the other the knowledge that he claims the exclusive right or title." Quoting from Stokely et al. v. Conner, 69 Fla. 412, 68 So. 452 (1915), the Coggan court stated further:

But a tenant in common, to show an ouster of his cotentant, must show acts of possession inconsistent with, and exclusive of, the rights of such a cotenant, and such as would amount to an ouster between landlord and tenant, and knowledge on the part of his cotenant of his claim of exclusive ownership. He has the right to assume that the possession of his cotenant in his possession, until informed to the contrary, either by express notice, or by acts and declarations that may be equivalent to notice.

239 So.2d at 19 (emphasis added).

In finding that there was no holding adversely or an ouster, the Coggan court observed that though one cotenant, the former husband, remained in sole possession of the property after divorce, the record was devoid of any evidence that prior to the filing of the partition suit the cotenant in possession advised the other cotenant that he was claiming adversely, that he had taken any action adverse to his former wife's interest or title, that he had taken any steps to actually or constructively oust her, or that she knew or should have known the former husband was claiming any right of title adverse to her. Id. It is further worth noting that the Supreme Court cited in Barrow, 527 So.2d at 1376, the annotation found at 51 ALR2d 388, "Accountability of cotenants for rents and profits or use and occupation." This annotation is replete with authority for the proposition that sole possession of...