Mummaw v. Mummaw, 88-661

• Decision Date: 29 September 1988
• Docket Number: No. 88-661,88-661
• Citation: 13 Fla. L. Weekly 2240,532 So.2d 737
• Parties: 13 Fla. L. Weekly 2240 Vernon MUMMAW, III, Appellant, v. Colleen Gail MUMMAW, Appellee.
• Court: Florida District Court of Appeals

Page 737

532 So.2d 737

13 Fla. L. Weekly 2240

Vernon MUMMAW, III, Appellant, v. Colleen Gail MUMMAW, Appellee.

No. 88-661.

District Court of Appeal of Florida First District.

Sept. 29, 1988.

Rehearing Denied Nov. 14, 1988.

Michael J. Korn, of Christian, Prom, Korn & Zehmer, P.A., Jacksonville, for appellant.

Clyde W. Davis, Fernandina Beach, for appellee.

MILLS, Judge.

In this appeal and cross-appeal from a final judgment in a dissolution of marriage proceeding, the former husband challenges the alimony and child support awards, and also the terms of the final judgment concerning eventual sale of the marital home. The former wife challenges a provision requiring sale of the marital home if she cohabits there with an unrelated male. We affirm in part and reverse in part.

We find no error or abuse of discretion in the trial court's award of alimony and child support. We do, however, agree with the former husband that the trial court erred in providing that, following the period of the wife's exclusive use and possession, the marital home shall be sold and the proceeds divided, without also providing that the former husband is entitled to a credit for funds expended by him, in excess of his obligation as a cotenant, for the mortgage and maintenance of the marital home during the period of the former wife's exclusive use and possession. Gudinas v. Gudinas, 471 So.2d 210 (Fla. 1st DCA 1985); Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976). Because the former husband's obligation, with respect to the expenses of the marital home, was denominated in the final judgment as child support, we note, as in Gudinas and Jones, that the trial court may revisit the issue of child support upon remand.

Finally, as urged on cross appeal, we strike the provision requiring sale of the marital home if the wife "cohabits with an unrelated male." Such a provision is only sustainable if it is necessary to safeguard the children's interests. Danoff v. Danoff, 501 So.2d 1361 (Fla. 4th DCA 1987). There is no evidence of such necessity in the record.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

SMITH, C.J., concurs.

NIMMONS, J., concurs with written opinion.

NIMMONS, Judge, specially concurring.

If we were writing on a clean slate, I would have difficulty with that portion of the Court's opinion which orders stricken the provision terminating the wife's exclusive use and benefit of the parties' marital home if she "cohabits with an unrelated male" on the premises. However, in view of the consistency of expressions on the subject emanating from our appellate courts, ¹ I concur with the court's opinion. But on remand, I would expressly permit the trial court, should it elect to do so, to amend the final judgment by including a provision of the kind approved by the Fourth District in Aycock v. Aycock, 498 So.2d 999 (Fla. 4th DCA 1986):

[E]xclusive possession [will] also terminate...