Harrell v. Harrell, 86-2642

• Decision Date: 10 November 1987
• Docket Number: No. 86-2642,86-2642
• Citation: 515 So.2d 1302,12 Fla. L. Weekly 2580
• Parties: 12 Fla. L. Weekly 2580 Cyrilla Ann HARRELL, Appellant, v. John W. HARRELL, Appellee.
• Court: Florida District Court of Appeals

Page 1302

515 So.2d 1302

12 Fla. L. Weekly 2580

Cyrilla Ann HARRELL, Appellant, v. John W. HARRELL, Appellee.

No. 86-2642.

District Court of Appeal of Florida Third District.

Nov. 10, 1987.

Rehearing Denied Dec. 21, 1987.

Hertzberg & Malinski and Deborah Marks, Miami, for appellant.

Michael A. Lipsky, Miami, for appellee.

Before HENDRY, NESBITT and FERGUSON, JJ.

HENDRY, Judge.

Cyrilla Ann Harrell appeals from a post dissolution, post partition sale, order determining credits to be allocated between the parties from the proceeds of the sale. We affirm in part, reverse in part and remand with direction to allocate husband's credits in accordance with this opinion.

The marriage of Cyrilla Ann and John W. Harrell was dissolved on June 14, 1985. The final judgment determined the Harrells to be tenants in common of several pieces of real property and responsible in equal amounts for all expenses, including mortgages, taxes, maintenance and repairs on their townhouse, 2 1/2 acres of unimproved land, and the marital residence. The husband was found to have a special equity in the marital home in the amount of $69,000. The wife was awarded $110,000 lump sum alimony payable by the husband at the rate of $15,000 per year, with the first payment due three months after the entry of the final judgment and continuing yearly until the balance of the $110,000 was paid in full, without interest. In the event that any of the jointly owned properties was sold, that portion of funds received for the husband's interest was to be credited against the balance due and owing on the lump sum alimony.

A property partition sought by the parties was also granted. Jurisdiction was reserved by the court to effectuate the sale of the properties, to determine fees and to enforce the judgment. Orders to force the sale of the acreage, the marital residence, its furniture and furnishings, were sought by John Harrell. In her response, Mrs. Harrell pointed out that no jurisdiction had been reserved by the court to consider the sale of the personalty.

Nevertheless, an order of partition entered on January 22, 1986, which appointed a special master and provided that costs of the sales shall be borne equally by the parties, also contained a reservation of jurisdiction (later vacated) to order a sale of the personalty. Published notices of sale dealt solely with the realty.

During the sale, at which the Harrells were the only bidders, John Harrell was permitted by the court to bid his special equity in the marital home in addition to his half interest. Mrs. Harrell was denied a similar use of the alimony owed her. A cash payment of $15,000 was made by the husband for the marital home and acreage, while the townhouse was purchased by his former wife for $4,000 cash.

At a hearing on the motion to determine credits for the expenses to be equally divided pursuant to the final judgment, Mr. Harrell sought, in addition to the items listed in his motion, credit for the furniture and furnishings removed from the marital home by Mrs. Harrell when she transferred domicile to the townhouse. The former husband testified that while he did not know the present condition of the property for which he sought credit, nor its current value, in several instances he had given replacement costs for items known to be several years old. No appraisers were called for valuation. With the 1986 alimony payment due, the parties requested that the court determine whether the former husband would be permitted to use his credit as the 1986 payment, as he desired, or whether it would be deducted from the balance due as called for in the final judgment.

The court entered its order awarding credits that included prorated 1986 taxes favoring the husband on the properties he purchased, and a determination of the value of the personalty removed from the marital home to be $26,908. It found the husband entitled to one-half of that amount, which he could credit against the front end of the lump sum alimony, thereby relieving him of the 1986 payment and permitting only a partial payment in 1987.

This appeal follows that order.

By the terms of the final judgment of dissolution of marriage, "In the event any of the jointly owned properties, to wit: the former marital residence, the townhouse or the unimproved land, are sold, the Husband shall pay to the Wife the funds he...