Neustein v. Neustein, 85-2710

• Decision Date: 04 March 1987
• Docket Number: No. 85-2710,85-2710
• Citation: 12 Fla. L. Weekly 693,503 So.2d 439
• Parties: 12 Fla. L. Weekly 693 Barbara L. NEUSTEIN, Appellant, v. Monroe NEUSTEIN, Appellee.
• Court: Florida District Court of Appeals

Page 439

503 So.2d 439

12 Fla. L. Weekly 693

Barbara L. NEUSTEIN, Appellant, v. Monroe NEUSTEIN, Appellee.

No. 85-2710.

District Court of Appeal of Florida Fourth District.

March 4, 1987.

Joel M. Weissman of Joel M. Weissman, P.A., Palm Beach, for appellant.

Michael L. Cohen of Michael L. Cohen, P.A., West Palm Beach, for appellee.

WEBSTER, PETER D., Associate Judge.

This is an appeal by the wife from a final judgment in a marriage dissolution proceeding. At the time of the final judgment, the parties had been married about five years. There was one child born of the marriage, who was not quite three when the judgment was entered. In addition, the wife had previously had a son whom the husband had adopted. The son was nearly fourteen when the judgment was entered.

The final judgment awards the wife primary residential care of both children (although parental responsibilities are to be shared). The husband is to pay $120.00 a week in child support ($60.00 per child). The husband was permitted visitation with the adopted son as agreed between the parties. The husband was permitted restricted visitation with his three-year-old daughter, apparently because of allegations of possible sexual abuse. The judgment provides for visits one afternoon a week, in the wife's home, for six months. At the end of six months, the husband is to have unsupervised visitation one day a week for another six months, after which the husband is to have normal visitation rights, including alternate weekends and holidays.

The final judgment also awards exclusive use of the marital home to the wife until the fourteen-year-old son becomes eighteen, at which time the home is to be partitioned. In the meantime, the wife is to pay all costs of the home, including the mortgage, insurance and taxes. When the home is sold, the wife is to receive credit for half of all sums paid. In addition, the husband was awarded a $12,000.00 special equity in the home.

On appeal, the wife raises four issues: (1) whether the trial court should have awarded the wife exclusive use of the home until the younger, rather than the older, of the children reaches majority; (2) whether the trial court incorrectly awarded the husband a special equity in the home; (3) whether, assuming the husband is entitled to a special equity in the home, the amount is too high because the trial court failed to apply the Landay formula; and (4) whether the trial court's ruling as to visitation between the husband and his daughter is an abuse of discretion.

The trial court abused its discretion when it awarded the wife exclusive use of the home only until the older child becomes eighteen (in four years). The younger child was only three. The wife should have received exclusive use of the home until she remarries or the younger child reaches majority, marries or is no longer dependent. In Zeller v. Zeller, 396 So.2d 1177, 1179 (Fla. 4th DCA 1981), this Court said:

Although the failure to award exclusive possession of the marital home unto the custodial parent until all of the children attain majority or become...