Hughes v. Krueger, 5D09–1371.

• Decision Date: 01 April 2011
• Docket Number: No. 5D09–1371.,5D09–1371.
• Citation: 67 So.3d 279
• Parties: Norma HUGHES, Appellant/Cross–Appellee,v.Hermann KRUEGER, Appellee/Cross–Appellant.
• Court: Florida District Court of Appeals

67 So.3d 279

Norma HUGHES, Appellant/Cross–Appellee,

v.Hermann KRUEGER, Appellee/Cross–Appellant.

No. 5D09–1371.

District Court of Appeal of Florida, Fifth District.

April 1, 2011.

Robert L. Sirianni, Jr., Sunny A. Hillary, and Paetra T. Brownlee of Brownstone, P.A., Winter Park, for Appellant/Cross–Appellee.James Magee, Orlando, and Bill McCabe, Longwood, for Appellee/Cross–Appellant.JACOBUS, J.

Norma Hughes, the former wife, timely appeals the supplemental final judgment entered in this case. Hermann Krueger, the former husband, cross-appeals. The underlying action began as a petition by the Former Wife for the partition of two properties that she owned jointly with the Former Husband. By the time of trial, however, the parties had agreed to seek only an accounting of the income and expenses related to the properties. That accounting, performed by the trial court, is the subject of this appeal. The Former Wife argues that, in performing the accounting, the trial court erred in its interpretation of Paragraph 7 of the original divorce judgment, which awarded the parties joint ownership of the two properties. In his cross-appeal, the Former Husband contends the court erred by combining the properties and treating them as one for the purposes of the accounting. We affirm as to the issue raised by the Former Wife, but reverse as to the issue raised by the Former Husband.

The original final judgment of divorce was entered in December 1990. It awarded the Former Husband “all of the businesses known as K & K Foreign Car Parts, Inc., and K & K Motors, Inc.,” as well as the assets connected with those companies. In addition, the original judgment awarded the parties joint ownership of two parcels of commercial property that were part of the marital estate. The first property was located on Oakridge Road and was being leased to a commercial tenant. This was the “Oakridge Property.” The second property, located on Tiner Avenue and known as the “Tiner Property,” was used by the Former Husband to operate K & K. The original divorce judgment awarded these properties to the parties as tenants-in-common, with the Former Husband receiving a 75% ownership interest and the Former Wife receiving a 25% ownership interest. The parties were also ordered to apportion the rental income and expenses on that basis.

From the time of the divorce in 1990 until the time of this lawsuit in 2008, the two properties were used exactly as they were at the time of the divorce. That is, the Former Husband used the Tiner Property for his business, and the Oakridge property was leased to a commercial tenant. The only difference was that the parties' son came to use part of the Tiner Property for an auto body business, of which the Former Wife was well aware.

The Former Husband never made any accounting to the Former Wife as to either property. The Former Husband did, however, pay the Former Wife a sum each month representing her share of the net rents that he received from the Oakridge Property. The Former Husband made these payments for almost 19 years after the divorce, periodically increasing the amounts over that time. At the trial of this cause in 2009, it was undisputed that the Former Husband's payments to the Former Wife had totaled $51,900.

With regard to the Tiner Property, no rental income was ever collected. The Former Husband was in exclusive possession of that property and used it for his business. While the parties' son also used part of the Tiner Property for his business, he was never requested to pay rent. The Former Wife, as a tenant-in-common, was never formally excluded from the property, though it is apparent that she and the Former Husband did not think highly of each other and she rarely visited the property. The trial court made a specific finding, supported by the evidence, that the Former Wife was never ousted from the Tiner Property.

In performing the accounting, the trial court combined the Oakridge and Tiner Properties, treating them as one for purposes of calculating each party's share of income and expenses. The court concluded the Former Husband owed a total sum of $7,787 to the Former Wife for both properties. In reaching this number, the court used the actual rental income and expenses for the Oakridge Property, and it used the fair...