Hazelwood v. Hazelwood, 76--460

• Decision Date: 29 April 1977
• Docket Number: No. 76--460,76--460
• Citation: 345 So.2d 819
• Parties: Maxwell G. HAZELWOOD, Appellant, v. Judith Ann HAZELWOOD, Appellee.
• Court: Florida District Court of Appeals

Page 819

345 So.2d 819

Maxwell G. HAZELWOOD, Appellant, v. Judith Ann HAZELWOOD, Appellee.

No. 76--460.

District Court of Appeal of Florida, Fourth District.

April 29, 1977.

F. Kendall Slinkman, III, of Farish & Farish, West Palm Beach, for appellant.

James Fox Miller, of Miller & Schwartz, P.A., Hollywood, for appellee.

LETTS, Judge.

This is an appeal from a final order of dissolution of marriage which adjudicated the question of alimony and possession of the marital home.

We reverse in part.

The case now before us is yet another example of a long term family marriage breakup involving a twenty-two year marriage, three children and a wife, now 44 years old, who, to all intents and purposes, has never pursued any occupation since the marriage, other than that of housewife and mother. The husband in this instance has a net, take home pay, of $2,000 per month, and the court has awarded the wife $1,000 per month in permanent periodic alimony.

We have very recently, and at great length, set forth our views on a marriage breakup such as this in McAllister v. McAllister, 4th DCA 1977, 345 So.2d 352. Opinion filed April 1, 1977, and there is no reason to repeat them here. Suffice it to say that we do not believe that the periodic award constitutes an abuse of discretion by the trier of the facts, although by contrast to McAllister, we would comment here that the award is generous; however, we must leave it undisturbed as 'it is not the function of the appellate court to substitute its judgment for that of the trial court . . .. The test . . . is whether the judgment of the trial court is supported by competent evidence.' Shaw v. Shaw, 334 So.2d 13 (Fla. 1976). We find such competent evidence in the record of this case.

We do not agree, however, with the trial court's decision relative to the family home. In the final judgment, the court granted the wife the exclusive possession of said marital home, (formerly held as a tenancy by the entirety) until her death, remarriage or her failure to continue it 'as her primary place of residence.' We believe this conclusion to be unsupported by competent evidence, and therefore, in error, even although the wife is directed to maintain the property and make all payments relative thereto (which will obviously be done out of the alimony award).

Only one of the three children is still a minor and she will attain her majority almost simultaneously with the issuance of this opinion. Moreover, the wife is able bodied, capable of employment and the husband has very little in the way of capital assets.

Based on the foregoing facts, we have researched the recent decisions and find them to be contrary to the lower court's ruling in the case now before us. In Watson v. Watson, 324 So.2d 126 (Fla.3rd DCA 1975), the court reversed an award of exclusive possession, pointing out that that award did not take the form of lump sum alimony, nor was it awarded by reason of minor children to whom the husband would owe child support obligations. See also Coalla v. Coalla, 330 So.2d 802 (Fla.2nd DCA 1976); Saviteer v. McAdoo, 310 So.2d 28 (Fla.2nd DCA 1975); Ranes v. Ranes, 311 So.2d 370 (Fla.2nd DCA 1975); Reisman v. Reisman, 314 So.2d 783 (Fla.3rd DCA 1975). The award of permanent exclusive possession to the wife is therefore reversed and the court below is directed to enter an order termining it within a reasonable time.

The facts of all of the above cited cases approximate to those of the case sub judice, except that in most of those, the husband's petition or counter partition, properly pled, and prayed, for a partition of the property which was not done in the case now before us. This very court held, in Niemann v. Niemann, 294 So.2d 415 (Fla.4th DCA 1974), that 'to justify partition, one of the parties must plead a right thereto in accordance with Chapter 64, Fla.Stat. (1971).' In the light of the Niemann case and other authorities cited therein, we therefore further hold that the court below had no jurisdiction to provide for the sale of the family home upon the happening of the certain events already set...