Martin v. Martin

• Decision Date: 05 May 1987
• Docket Number: No. 86-1177,86-1177
• Citation: 507 So.2d 1136,12 Fla. L. Weekly 1162
• Parties: 12 Fla. L. Weekly 1162 Obdulia MARTIN, Appellant, v. Andres MARTIN, Appellee.
• Court: Florida District Court of Appeals

Page 1136

507 So.2d 1136

12 Fla. L. Weekly 1162

Obdulia MARTIN, Appellant, v. Andres MARTIN, Appellee.

No. 86-1177.

District Court of Appeal of Florida Third District.

May 5, 1987.

Rehearing Denied June 16, 1987.

Krongold & Bass and Evan R. Marks, Coral Gables, for appellant.

Agustin A. Perez-Cervera, Coral Gables, for appellee.

Before BARKDULL, ^* DANIEL S. PEARSON and JORGENSON, JJ.

PER CURIAM.

Upon dissolution of marriage, the wife was awarded possession of the marital home. The final judgment provides in part:

"[u]ntil she vacates the premises, remarries, or cohabits with another man, whichever occurs first."

We strike from the final judgment of dissolution the cohabitation condition subsequent to possession as not being supported by evidence in the record to justify same. Nichols v. Nichols, 491 So.2d 617 (Fla. 1st DCA 1986); Tyler v. Tyler, 427 So.2d 1027 (Fla. 2d DCA 1983); Miller v. Miller, 423 So.2d 638 (Fla. 4th DCA 1982). If in the future, to protect the welfare of the minor children, this should be necessary, an appropriate application for modification may be sought. McClay v. McClay, 447 So.2d 1026 (Fla. 4th DCA 1984); Tyler v. Tyler, supra.

The final decree of dissolution is affirmed as modified.

BARKDULL and JORGENSON, JJ., concur.

DANIEL S. PEARSON, Judge, concurring.

While I concur in the result, I find it anomalous to disapprove of a provision which would terminate the custodial parent's possession of the former marital home if she cohabits with another man, but, in other cases, to approve of--indeed, to require--a provision which would terminate the custodial parent's possession of the former marital home if the custodial parent remarries. ¹ Seizing upon this anomaly, the non-custodial father makes a compelling argument that the result in these cases should be the same, and that since termination is the result in the case of remarriage, it should be the result in the case of cohabitation. ² Although I agree that there should be no difference in the result, I conclude, contrary to appellee, that termination of possession should not be required in either case.

The final judgment dissolving the Martins' marriage provided, inter alia, for weekly child support payments by the father, shared parental responsibility for their two minor children, primary residential custody in the mother, and exclusive possession of the marital home in the mother while the father's obligation to pay child support continues or "until she vacates the premises, remarries, or cohabits with another man, whichever occurs first." The mother appeals the final judgment, asking that the blanket anti-cohabitation condition be stricken on the ground that such a condition improperly restricts the private life of the custodial parent and can be imposed only when there is competent, substantial evidence that the condition is necessary to preserve the welfare of the minor children. Since it is true that an anti-cohabitation condition is "sustainable only if the record contains competent, substantial evidence that [it is] necessary to safeguard the children's interests," Danoff v. Danoff, 501 So.2d 1361, 1364 (Fla. 4th DCA 1987), and there is no such evidence in this record, the majority is correct in summarily concluding that the condition must fall. However, because the majority opinion does not address the father's argument, I write separately to do so.

The primary reason for an award to the custodial parent of exclusive possession of the marital home until the children reach their majorities is to maintain the children in as familiar an environment as possible while they attempt to cope with the shockwaves of the dissolution of their parents' marriage. Anyone even slightly conversant with the psychological universe understands that

"[f]or children of tender age, ... the dissolution of the marriage between their parents is an unsettling experience. To require them to move from their home within one year of the traumatic dissolution of marriage can only add to the children's feeling of insecurity and frustration."

Singer v. Singer, 342 So.2d 861, 862 (Fla. 1st DCA 1977).

Thus, when the question before the court is where the children will live when the marriage of their parents is dissolved, Florida courts have consistently declared that, if at all possible, the physical and psychological uprooting of the children of a broken marriage must be avoided and the children must be allowed to remain in their home with the custodial parent. See Neustein v. Neustein, 503 So.2d 439 (Fla. 4th DCA 1987); Cabrera v. Cabrera, 484 So.2d 1338 (Fla. 3d DCA 1986); Pino v. Pino, 418 So.2d 311 (Fla. 3d DCA 1982); Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA 1979).

It is strange, indeed, then, to discover that this appropriately sensitive attitude towards the needs of the children is nowhere to be found when the question before the court is where the children will live when the custodial parent in exclusive possession of the marital home remarries. When that is the question, the unequivocal answer from the courts is a callous: "The custodial parent and the children are to live elsewhere." As one court explained:

"The court [in Duncan v. Duncan, 379 So.2d 949 (Fla.1980) ] did not address the issue whether the award [of exclusive use and possession of the marital home] must terminate upon remarriage of the spouse. Cases decided after Duncan have continued to impose this requirement. The wife argues that the award was labeled 'child support' and that child support is unaffected by remarriage of the custodial parent.

"The award of exclusive possession of the marital home also contributes to the support of the wife by providing her with rent-free housing. Should the wife remarry and her new husband move into the home with her, appellant would be then contributing to the support of the new husband by providing him with rent-free housing. While we have found no cases on point, we believe the better rule to be that exclusive possession should terminate upon the wife's remarriage. While this would be a change in circumstances justifying a reexamination of the child support obligation, we hold that one spouse cannot be deprived of his or her right to possession of jointly held property awarded to the other spouse as an incident of child support upon that parent's remarriage."

Caldwell v. Caldwell, 400 So.2d 1270, 1272 (Fla. 5th DCA 1981) (citations omitted) (emphasis in original).

What is the justification for throwing out the babies with the bath water? According to one court, the reason for the rule of wholesale eviction "is to avoid imposing on the former husband the obligation of providing shelter and habitation for his ex-wife's new spouse." Lambert v. Lambert, 403 So.2d 484, 486 (Fla. 1st DCA 1981). This court, in overturning a final judgment which granted the custodial wife the use and occupancy of the home until the child attained majority without regard to whether the wife remarried, viewed the provision permitting her to remain in the home after remarriage as "a frustrating and pernicious [obligation] to visit upon the former husband." Abella-Fernandez v. Abella, 393 So.2d 40, 41 (Fla. 3d DCA 1981). See also Smith v. Moughan, 442 So.2d 338, 343 (Fla. 5th DCA 1983) (Sharp, J., dissenting) ("galling" to require ex-wife to provide housing in former marital home for ex-husband's new wife). ³

While I have little doubt that it would stick in the craw of the supporting spouse to have the supported spouse living, married or not, with a stranger in the...