Kilian v. Kilian, 57-120

• Decision Date: 03 October 1957
• Docket Number: No. 57-120,57-120
• Citation: 97 So.2d 201
• Parties: John V. KILIAN, Appellant, v. Dorothy R. KILIAN, Appellee.
• Court: Florida District Court of Appeals

Page 201

97 So.2d 201

John V. KILIAN, Appellant, v. Dorothy R. KILIAN, Appellee.

No. 57-120.

District Court of Appeal of Florida, Third District.

Oct. 3, 1957.

J. R. Bates, Miami, for appellant.

Bernard Berman, Miami, for appellee.

CARROLL, CHAS., Chief Judge.

A final decree awarded the appellee Dorothy R. Kilian a divorce, a half interest in a business of the parties, and the husband's interest in their jointly owned furnished home.

The appeal challenges only that portion of the decree awarding to the wife the husband's share of the home as lump sum alimony.

The appellant's contention, that the interest in the property held by the husband and wife in an estate by the entireties could not be the subject of lump sum alimony to his wife, is without merit. Bezanilla v. Bezanilla, Fla.1953, 65 So.2d 754; Reid v. Reid, Fla.1954, 68 So.2d 821; and Halberstadt v. Halberstadt, Fla.1954, 72 So.2d 810.

In Reid v. Reid, supra, 68 So.2d at page 822, the Supreme Court speaking through Mr. Justice Thomas, settled that question as follows:

'The first question may be simply stated: Did the chancellor have the power to command the appellant to convey his interest in the property which was held as an estate by the entireties at the time the decree was entered?

'We have so frequently dealt with such an estate that there is no occasion to pause here to repeat our definitions. It is sufficient to say that the interests of the parties, who must have been man and wife for such an estate to have been created, became crystallized by a dissolution of the union. At once they became 'tenants in common.' Sec. 689.15, Florida Statutes 1951, and F.S.A., each owning an undivided one-half interest in the property.

'Clearly, under Sec. 65.08, Florida Statutes 1951, and F.S.A., the chancellor had the power to order payment of alimony 'in a lump sum.' He had also the power to require the conveyance by the husband to the wife of real property owned entirely by the husband. See Bezanilla v. Bezanilla, Fla., 65 So.2d 754. If the chancellor can order the conveyance of property the husband owns outright there is no reason to hold that he cannot order the man to convey to the woman his undivided interest in property they own as tenants in common.'

The contention that the allowance of alimony was an abuse of discretion, likewise is without merit, and appellant has failed to sustain the burden of showing an abuse of discretion on the record. See Astor v. Astor, Fla.1956, 89 So.2d 645, 648, and Lauderdale v. Lauderdale, Fla.App., 1957, 96 So.2d 663, 665.

The record on appeal shows that their acquisition of the home and of the small...