Robinson v. Robinson, 75-2160
| Decision Date | 19 November 1976 |
| Docket Number | No. 75-2160,75-2160 |
| Parties | James Brinton ROBINSON, Appellant, v. Ruth Alene ROBINSON, Appellee. |
| Court | Florida District Court of Appeals |
Jon S. Rosenberg of Marvin E. Newman & Jon S. Rosenberg, Orlando, for appellant.
Michael L. Marlow of Wombles, Marlow & Appleton, Winter Park, for appellee.
This is an appeal and cross-appeal from a final judgment of divorce.
Appellant-husband first contends that the court below erred in finding that the parties had equal interests in the marital home and thereby, upon dissolution of the marriage, became tenants in common. The legal title to the home was in the husband. The trial court's finding was not based upon an award of lump sum alimony or a determination of a special equity. The trial judge concluded that even though legal title was in the husband the evidence established that the intent of the parties was that the home be owned by them jointly. The issue of ownership was not specifically raised by the pleadings; however, without objection from either party the issue was presented, considered and ruled on by the trial court. When issues not raised by the pleadings are tried by express or implied consent of the parties, they may be treated by the trial court in all respects as if they had been raised in the pleadings. Fla.R.Civ.P. 1.190(b). We have reviewed the record on appeal and conclude that there was sufficient evidence to support the trial court's finding that the parties had an equal interest in the marital home.
We have considered the other points raised by appellant-husband, and with one exception find them to be without merit. The trial court granted to appellee-wife the possession and occupancy of the marital home until the youngest child of the parties is eighteen years of age. Such an award is proper because it is in the nature of maintenance as an incident of child custody. Sistrunk v. Sistrunk, 235 So.2d 53 (Fla.4th DCA 1970); Brown v. Brown, 123 So.2d 298 (Fla.3d DCA 1960).
However, the final judgment further provided:
'The parties are hereby refrained (sic) from encumbering or disposing his or her interest in said property without the prior written consent of the other which will not be unreasonably withheld in the case of necessary repairs.'
We hold that the provision quoted above exceeded the authority of the trial court. Each of the parties, after dissolution of the marriage, owned an undivided one-half interest in the home as...
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