Horn v. Horn, 80-1023
| Decision Date | 12 May 1981 |
| Docket Number | No. 80-1023,80-1023 |
| Citation | 398 So.2d 935 |
| Parties | Sharon Lee HORN, Appellant, v. Richard L. HORN, Appellee. |
| Court | Florida District Court of Appeals |
Gelb & Spatz and Monroe Gelb, Miami, for appellant.
A. J. Barranco, Jr., Stuart and Steven Kellough, Miami, for appellee.
Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
The wife appeals from a supplemental judgment partitioning the marital home which she owned as tenant in common with her former husband. Her contention is that because she had exclusive possession of the home, as an incident of child support, Forte v. Forte, 320 So.2d 446 (Fla.3d DCA 1975), cert. denied, 351 So.2d 406 (Fla.1977); Richardson v. Richardson, 315 So.2d 513 (Fla. 4th DCA 1975), that partition of the property was premature because only the party having an immediate right of possession may maintain such an action. Pollack v. Pollack, 159 Fla. 224, 31 So.2d 253 (1947); Black v. Miller, 219 So.2d 106, 108 (Fla.3d DCA), cert. denied, 225 So.2d 920 (Fla.1969). We disagree and affirm.
Some two years prior to the entry of the partition judgment, the parties had entered into a property settlement agreement which was ratified and incorporated into the final judgment of dissolution. By the terms of that agreement, the wife was awarded custody of the parties' two minor children. The husband was required to pay child support to the wife. Under the agreement, the wife voluntarily relinquished all claims to alimony. The property settlement agreement with respect to the marital home provided:
SECTION THREE
Husband agrees that Wife and the minor children described herein shall have the exclusive use and enjoyment of the marital home of the parties, located at 1624 Tigertail Avenue, Coconut Grove, Miami, Florida, until a sale of said home. Until such sale is made, or if no such sale can be made, Husband agrees to make the mortgage, real property tax and insurance payments in connection with the home, which currently total $485.00 per month.
In the event the home is sold, Husband further agrees to pay the mortgage, real property tax and insurance payments on a replacement residence, up to a maximum aggregate sum of $485.00 per month. In connection with Husband's payments for the replacement residence, Husband shall be entitled to claim as deductions on his individual federal income tax return those amounts representing interest charges on any mortgage and the real property taxes.
In the event the marital home is sold and a replacement is not purchased, Husband agrees to pay a rent allowance for such residence, up to a maximum amount of $485.00 per month.
Upon the sale of the marital home, or the replacement home, Husband shall receive from the proceeds thereof, credit for payments made in reducing the principal of any mortgage upon the property.
Husband's obligations pursuant to this Section Three shall cease when the youngest child, MICHAEL, attains the age of eighteen (18) years.
As we construe the agreement, we find that the trial court was entirely correct in decreeing partition. Under the agreement, the husband had the obligation to furnish all shelter and housing on behalf of the children until the youngest attained the age of eighteen. The husband could have satisfied that obligation by either: (1) continuing to make the mortgage, real property tax, and insurance payments on the home in question; or (2) making those payments on a replacement home; or (3) making equivalent payments toward the rental of a replacement home. While the property settlement agreement did employ the words of art, "exclusive use and enjoyment of the marital home," we find that that phrase has little significance beyond denying the husband the right to occupy the home with the former wife. Obviously, the possession of the marital home was a temporary incident of child support but the house, as such, did not constitute a res in which the children had an exclusive right to possession. Nor did the wife's position as custodial parent afford her any derivative right to possession.
In this case, there is a secondary basis upon which to support the judgment appealed from. It has long been recognized, pursuant to Section 61.13, Florida Statutes (1977), that modification of a separation agreement for the welfare of children and for the...
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Lambert v. Lambert
...and possession of property for the benefit of the children is permissible at any stage of the dissolution proceedings. Horn v. Horn, 398 So.2d 935 (Fla. 3d DCA, 1981). But cf., Covin v. Covin, 403 So.2d 490 (Fla. 3d DCA 1981). Therefore, the lower court erred in refusing to modify the origi......
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...or other support. Similarly, Cannon v. Morris, 407 So.2d 372 (Fla. 1st DCA 1981), and the case upon which it relies, Horn v. Horn, 398 So.2d 935 (Fla. 3d DCA 1981), can be distinguished from the instant case. In both of those cases, the former wife had the marital home as an incident of chi......
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Cannon v. Morris, YY-271
...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" w......