Martinez-Noda v. Pascual, No. 3D19-1646

• Decision Date: 01 April 2020
• Docket Number: No. 3D19-1646
• Citation: 305 So.3d 321
• Parties: Peter MARTINEZ-NODA, Appellant, v. Zurami PASCUAL, Appellee.
• Court: Florida District Court of Appeals

305 So.3d 321

Peter MARTINEZ-NODA, Appellant,

v.Zurami PASCUAL, Appellee.

No. 3D19-1646

District Court of Appeal of Florida, Third District.

Opinion filed April 1, 2020.

Davis Smith & Jean, LLC, and Sonja A. Jean, and Laura Davis Smith, Miami, for appellant.

Perez-Abreu & Martin-Lavielle, P.A., and Andy W. Acosta and Javier Perez-Abreu, Coral Gables, for appellee.

Before FERNANDEZ, LOGUE, and MILLER, JJ.

MILLER, J.

Appellant, Peter Martinez-Noda, the former husband, challenges a final decree partitioning certain real property consisting of the marital residence and accompanying lands. On appeal, Martinez-Noda contends the lower tribunal erred both in effecting partition and failing to consider credits prior to apportioning the proceeds derived from the court-ordered sale. We affirm the well-reasoned judgment under review in all respects, save the allocation of proceeds clause.

Martinez-Noda and his former wife, appellee, Zurami Pascual, held the relevant property as tenants by the entireties for the duration of their union. In early 2010, Pascual filed for dissolution. Contentious litigation ensued and, later that year, the parties negotiated a marital settlement agreement. Under the terms of the agreement, Pascual was required to transfer her ownership interest in the property to Martinez-Noda after he satisfied multiple promissory notes, payable to a third-party acquaintance. The trial court ratified the agreement and dissolved the marriage.

Following the dissolution, Martinez-Noda filed for bankruptcy protection, seeking relief from his outstanding obligation under the promissory notes. The obligee accelerated the notes and declared a default. Thereafter, Martinez-Noda received a discharge of the remaining debt.

Pascual reopened the dissolution proceeding, concomitantly filing a petition to partition the property. The lower tribunal granted partition, specifying that the proceeds of the court-ordered sale first be applied to satisfy an outstanding mortgage, and then any remaining funds "distributed equally (50/50) to each party." The instant appeal followed.

As "the power of the trial court to deny partition should be invoked only in extreme cases, where otherwise manifest injustice, fraud or oppression would result if the remedy were granted," we affirm the propriety of the judgment under review without further elaboration. Sudholt v. Sudholt, 389 So. 2d 301, 302 (Fla. 5th DCA 1980) ; see Lashkajani v. Lashkajani, 911 So. 2d 1154, 1159 (Fla. 2005) ("Although contract principles play a role in dissolution proceedings, courts must remember that ‘proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law.’ ") (quoting Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997) ); Green v. Green, 16 So. 3d 298, 301 (Fla. 1st DCA 2009) ("Partition principles are flexibly applied in order to arrive at a fair, equitable, and just decree.") (citation omitted). However, adhering to the adage "equality is equity," the preordained distribution of the proceeds of the sale warrants further discussion. Tompkins v. Wheeler, 41 U.S. 106, 116, 16 Pet. 106, 10 L. Ed. 903 (1842).

"Upon dissolution of marriage, the tenants of an estate by the entirety become tenants in common." McCarthy v. McCarthy, 922 So. 2d 223, 226 (Fla. 3d DCA 2005) (citation omitted). Tenants in common bear "equal responsibility in making all payments necessary to maintain their ownership of the property." Kelly v. Kelly, 583 So. 2d 667, 668 (Fla. 1991). Thus, each co-tenant is ultimately liable for his or her proportionate share of the "taxes, mortgage payments, insurance and maintenance and repair." McCarthy, 922 So. 2d at 226. Accordingly, upon partition, a...