Goolsby v. Wiley
| Decision Date | 12 July 1989 |
| Docket Number | No. 88-2934,88-2934 |
| Citation | 14 Fla. L. Weekly 1664,547 So.2d 227 |
| Parties | 14 Fla. L. Weekly 1664 Glenda A. Wiley GOOLSBY, Appellant, v. Joseph B. WILEY, Appellee. |
| Court | Florida District Court of Appeals |
Paul M. Herman of Beers and Herman, P.A., Palm Beach Gardens, for appellant.
Melinda Penney Gamot, Palm Beach, and Jane Kreusler-Walsh of Klein, Beranek & Walsh, P.A., West Palm Beach, for appellee.
This case involves two issues arising upon post-dissolution sale of property held by former marital partners as a tenancy in common. The first is whether the spouse in occupancy who paid all expenses of maintenance and preservation of the property is entitled to a credit from the sale proceeds of one-half of those expenses. The second is whether the spouse out of possession is entitled to a set-off against his liability for expenses, if any, for one-half of the fair rental value of the property for the term of occupancy by the other spouse. A preliminary consideration is whether the circuit court had jurisdiction to determine these issues post-dissolution absent a specific reservation of jurisdiction.
The marriage was dissolved in 1987. The final judgment provided for eventual sale of the marital home, previously held as an estate by the entireties. After deduction of the costs of sale, the proceeds were to be divided equally. The judgment also provided that the former wife "shall have exclusive use and occupancy of the home pending its sale and she shall be responsible for all costs of the home during her exclusive occupancy." No mention was made of subsequent credit for expenses or rent as to either spouse. The court specifically reserved jurisdiction of the entire matter to "enter such further orders as may be equitable, appropriate and just."
The marital home was sold in July 1988. The former wife sought credit for one-half of the expenses and the former husband asked for rent. The trial court pointed out that the final judgment made no reference to credits and since no appeal was taken from that judgment no credits would be allowed: in essence a jurisdictional explanation. Both the jurisdictional question and the first issue are controlled by this court's en banc opinion in Brandt v. Brandt, 525 So.2d 1017 (Fla. 4th DCA 1988).
Distilling the Brandt opinion to its essence, we held that certain attributes of a tenancy in common attach by operation of law and therefore apply where a property settlement agreement or final judgment are silent as to those attributes. Perhaps the most important such characteristic of a tenancy in common is the proposition that each cotenant "is ultimately liable for his or her proportionate share of the obligations of the property," and that when one cotenant is vested with possession by judgment or agreement and is required to pay some or all of the obligations of the property, "the right of the co-tenant in possession to reimbursement from the other co-tenant is postponed until such time as the property is partitioned or otherwise sold." Id. at 1019.
This answers the jurisdictional question. The right to reimbursement exists apart from any judgment or agreement. It is an implied term of any such judgment or agreement that is silent on the subject. Exercise of the right is therefore merely a matter of enforcement so that no "retention of jurisdiction" is necessary to enforce application of the credit.
Brandt also controls the issue of the former wife's claim. She is entitled to a credit against the sale proceeds of one-half of the property expenses that she paid on and after November 12, 1987, the date of rendition of the final judgment. Accord Fischer v. Fischer, 503 So.2d 399 (Fla. 3d DCA 1987); Tinsley v. Tinsley, 490 So.2d 205 (Fla. 3d DCA 1986). As the cases explain, the right to a credit exists unless there is a basis in the record to relieve the non-expense-paying spouse of his duty to contribute. If this were not the rule then one spouse, upon sale, would receive a full one-half of the net sale proceeds which could include and usually would include a substantial increment representing formerly unrealized appreciation in the value of the real property. The other spouse, who has been solely responsible for making principal payments on the mortgage, thus directly increasing the parties' equity, and for paying interest, insurance and taxes, thus protecting the investment from risks and liens, receives one-half of the net sales proceeds LESS the sum of all such expenses. Such a result is inequitable unless there has been some prior consideration given for the disparity which can be demonstrated on the record.
The second issue is raised by the former husband's claim for a set-off against the credits due the former wife of an amount equal to one-half of the fair rental value of the property during the term of the former wife's occupancy. The general rule is that occupancy of property by one cotenant is occupancy for all cotenants and there can be no recovery for use and occupation or rent under these circumstances in the absence of ouster. There are exceptions to the rule such as the situation where the tenant in possession leases the property to others and receives rent under the lease. Rent and other "profits" are generally deemed to be received for the benefit of all of the cotenants in proportion to their ownership. See generally Annotation, Accountability of Cotenants for Rents and Profits or Use and Occupation, 51 A.L.R.2d 388 (1957).
The Supreme Court of Florida discusses another exception to the general rule, one closer to the factual situation in this case, in Barrow v. Barrow, 527 So.2d 1373 (Fla.1988). In Barrow the wife was awarded a one-half interest in the marital home as alimony. The final judgment was silent on the questions of possession and sale or other disposition of the property and there was no agreement of the parties touching on these issues. The husband moved into possession and the wife moved to another state....
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Demorizi v. Demorizi, 3D02-2063.
...to have, full jurisdiction over the parties and continuing jurisdiction to enforce its own orders and judgments. Goolsby v. Wiley, 547 So.2d 227 (Fla. 4th DCA 1989); Brandt v. Brandt, 525 So.2d 1017 (Fla. 4th DCA 1988). In enforcing the wife's rights that were established by operation of la......
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Fitzgerald v. Fitzgerald, 88-2541
...youngest child's residence with her father is not contrary to the grant of the exclusive use and occupancy. Compare Goolsby v. Wiley, 547 So.2d 227 (Fla. 4th DCA 1989) (if a former spouse was given exclusive possession of a former marital residence by a specific provision in a final judgmen......
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Biondo v. Powers, 98-3286.
...is entitled to a credit from the proceeds of the sale for the other cotenant's proportionate share of those expenses. Goolsby v. Wiley, 547 So.2d 227 (Fla. 4th DCA 1989); Gerver v. Stein, 490 So.2d 1331 (Fla. 3d DCA Based on these principles, we hold that Biondo is correct. The evidence was......
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Hernandez v. Hernandez, 92-2721
...for exclusive use and occupancy subsequent to divorce. Where that is so, a different rule applies. As stated in Goolsby v. Wiley, 547 So.2d 227 (Fla. 4th DCA 1989): Where the parties have agreed that one should have exclusive possession and there is no provision in the agreement for rent, i......
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The bursting bubble - dealing with the marital home during a real estate recession.
...sold.8 These dissenting and concurring opinions foreshadowed statutory changes that would arrive almost a decade later. Goolsby v. Wiley, 547 So. 2d 227 (Fla. 4th DCA 1989)--The facts in Goolsby are almost identical to those found in Brandt, except that Goolsby was decided at the trial cour......