McCarthy v. McCarthy, 3D04-2938.
| Decision Date | 07 December 2005 |
| Docket Number | No. 3D04-2938.,3D04-2938. |
| Citation | 922 So.2d 223 |
| Parties | Carrollyn Cox McCARTHY, Appellant, v. Kevin James McCARTHY, Appellee. |
| Court | Florida District Court of Appeals |
Greenman & Manz, and Franklin D. Greenman, Marathon, for appellant.
Russell H. Cullen, Key Largo, and James R. (Jack) Bridges, San Francisco, CA, for appellee.
Before RAMIREZ, WELLS, and CORTIÑAS, JJ.
Carrollyn Cox McCarthy appeals from the trial court's Amended Final Order of Dissolution of Marriage. We reverse because the trial court's award to the former husband, Kevin James McCarthy, for the rental of the marital home while the former wife and the minor children are living in the home was in error. In addition, because there was no evidentiary basis for the trial court's determination that only repairs in excess of $3,000.00 are to be shared by the co-tenants, we reverse on this issue as well.
The parties were married on October 14, 1989, and had three children, who as of March 2005 were ages thirteen, ten and six. At the time of the parties' separation in August 2000, the mother was a marine biologist earning $38,070.00 a year, and the father was employed as a marine scientist making $34,800.00 a year. The parties' primary asset was the marital home.
At the time of the parties' separation, the father agreed to pay child support in the amount of $500.00 every two weeks but stopped making those payments in March 2001. The mother has continued to make all mortgage payments, taxes and insurance on the marital home from September 2000 to the present. Both parties requested custody of the minor children.
The parties' competing motions for custody and the mother's petition for temporary child support were heard before a General Master, who concluded that the mother be given temporary residential responsibility for the minor children with reasonable visitation to the father. Child support was ordered at $1,098.65 per month effective June 1, 2001. Retroactive child support was also ordered. The trial court adopted the report on August 13, 2001. Since then, the mother has had to take a second job as a waitress at a local restaurant and the father lost his job and moved to Miami-Dade County to find a new one.
Subsequently, the parties settled all their marital issues except over the marital home, particularly whether the father was entitled to credit for the mother's occupancy of the marital home. On October 28, 2004, the trial court awarded the mother the exclusive use, occupancy and possession of the marital home, and ordered her to continue to pay all mortgage payments, taxes, insurance and maintenance for the home. The court also granted her a credit, after the proceeds from a future sale were divided, for one-half of her actual expenses for mortgage payments, insurance, and taxes, as well as for repairs exceeding $3,000.00. The court further ordered a setoff against the wife's credit for the fair rental value of the property. The court reserved jurisdiction to determine the reasonable amount of rent for that period of time.
We conclude that the trial court erred in granting the father credit for an undetermined rental credit as a setoff against the mother's payment of all of the expenses on the marital home during her exclusive occupancy with the minor children. The non-residential parent is not entitled to rental value of the property during the residential parent's use and occupancy when the occupancy is for the benefit of the minor children and pursuant to court order. See Iodice v. Scoville, 460 So.2d 576, 577 (Fla. 4th DCA 1984). The Iodice case holds that, upon partition of the marital residence, which, in effect, will result when the parties sell the marital home, the spouse who is not in possession is not entitled to rental value of the property during the use and occupancy by the other spouse because the occupancy by the other spouse was for the benefit of the children and pursuant to court order. See also Kelly v. Kelly, 583 So.2d 667 (Fla. 1991).
The trial court found that the best interests of the McCarthy children would be served by living with their mother. The exclusive occupancy of the marital home while the minor children reside there is considered a privilege which bars the husband, in this case, from receiving fair market rental value of the property. See Power v. Power, 387 So.2d 546 (Fla. 5th DCA 1980).
The trial court also found that the mother's exclusive...
To continue reading
Request your trial
-
Green v. Green
...an estate by the entirety become tenants in common upon entry of the final judgment granting dissolution of marriage. McCarthy v. McCarthy, 922 So.2d 223 (Fla. 3d DCA 2005). As tenants in common they are responsible for dividing equally all payments such as mortgage payments, taxes, repairs......
-
Lee v. Lee
...for those obligations "is entitled to credit from the proceeds of the sale for the other co-tenant's proportionate share of those expenses." Id. (citation Martinez-Noda v. Pascual, 305 So.3d 321, 323 (Fla. 3d DCA 2020) (emphasis added). "[T]he trial court must make a finding of the value of......
-
Bailey v. Covington
...liable for his or her proportionate share of the "taxes, mortgage payments, insurance and maintenance and repair." McCarthy v. McCarthy, 922 So. 2d 223, 226 (Fla. 3d DCA 2005). Accordingly, upon partition, a co-tenant shouldering a disproportionate responsibility for those obligations "is e......
-
Martinez-Noda v. Pascual, No. 3D19-1646
...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 ......
-
Equitable distribution and property issues
...the assumption that the court intended wife’s exclusive use and occupancy to be an incident of child support. • McCarthy v. McCarthy, 922 So. 2d 223 (Fla. 3d DCA 2005). Father who was engaged in divorce proceedings with mother was not entitled to a rental credit as a setoff against mother’s......
-
Final judgment; rehearing; motions related to judgment
...would be split equally between former wife and former husband was equitable; the only marital asset was the home. • McCarthy v. McCarthy, 922 So. 2d 223 (Fla. 3d DCA 2005). Father who was engaged in divorce proceedings with mother was not entitled to a rental credit as a setoff against moth......
-
Partitioning real property in dissolution of marriage actions and suits between unmarried co-tenants: credits, setoffs, ouster, division, and sale.
...one-half interest in the real property upon sale. (13) Costa v. Costa, 951 So. 2d 924 (Fla. 4th D.C.A. 2007); McCarthy v. McCarthy, 922 So. 2d 223 (Fla. 3d D.C.A. 2005); Biondo v. Powers, 743 So. 2d 161 (Fla. 4th D.C.A. (14) Id. (15) Sudholt v. Sudholt, 389 So. 2d 301 (Fla. 5th D.C.A. 1980)......
-
The bursting bubble - dealing with the marital home during a real estate recession.
...this issue, then it was assumed that the court did not intend for the party out of possession to receive a credit. McCarthy v. McCarthy, 922 So. 2d 223 (Fla. 3rd DCA 2005), went one step further. The McCarthy court held that when possession of the award is for the benefit of the parties' mi......