Salyers v. Good, 83-992
| Decision Date | 09 December 1983 |
| Docket Number | No. 83-992,83-992 |
| Citation | 443 So.2d 152 |
| Parties | Michael E. SALYERS, Appellant/Cross-Appellee, v. Martha A. GOOD, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
H.H. Baskin, Jr., P.A., of Baskin & Bennison, Clearwater, for appellant/cross-appellee.
Elihu H. Berman of Krug, Berman & Silverman, Clearwater, and Leon Whitehurst, Jr., Clearwater, for appellee/cross-appellant.
In this postdissolution action, the husband appeals the denial of his motion for attorney's fees, and the wife cross-appeals the order dismissing her complaint for partition.
Paragraph 7 of the parties' property settlement agreement which was incorporated into the dissolution judgment of April 23, 1982, provided in part as follows:
[T]he Husband shall have the exclusive use and possession of the property [marital home] until such time as the same is sold. Upon the sale of the property, the Wife shall be entitled to forty percent (40%) of the net equity realized from the sale thereof less the following proceeds attributable to the contributions by the Husband during his tenancy therein:....
The balance of the paragraph spelled out the percentage of reimbursement to which the husband would be entitled for mortgage payments and other expenditures.
On March 10, 1983, the wife filed a complaint for partition of the marital home. The husband moved to dismiss for failure to state a cause of action and requested reasonable attorney's fees pursuant to section 57.105, Florida Statutes (1981). The court dismissed the complaint with prejudice "for the reason that the wife is not entitled to immediate possession of the subject real property and therefore will be unable to amend her complaint for partition to state a cause of action." The court denied the husband's motion for attorney's fees.
The argument pertaining to attorney's fees centers on whether the complaint was frivolous. Because we have determined to sustain the wife's position on cross-appeal, further discussion of this point would be superfluous.
The husband argues alternative positions to support the dismissal of the complaint for partition. First, he relies upon the supreme court's decision in Tresher v. McElroy, 90 Fla. 372, 106 So. 79 (1925), for the proposition that without unity of possession, there can be no tenancy in common. Tresher was decided in another context and is not controlling. The marital home in the instant case was formerly owned by the parties as tenants by the entirety. Under the provisions of section 689.15, Florida Statutes (1981), when their marriage was dissolved, the parties became tenants in common.
The husband further argues that even if they are tenants in common, the wife has no right of partition at this time because her interest is burdened by the husband's right of possession. Where one spouse has been awarded possession of the marital home as an incident of the other spouse's obligation to support, the nonpossessing spouse cannot obtain partition until the other's right to possession has terminated. Black v. Miller, 219 So.2d 106 (Fla. 3d DCA), cert. denied, 225 So.2d 920 (Fla.1969); Pollack v. Pollack, 159 Fla. 224, 31 So.2d 253 (1947). The question here, however, is...
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Wells v. Wells, Case No. 2D17–721
...not do so." Moore v. State Farm Mut. Auto. Ins. Co., 916 So.2d 871, 877 (Fla. 2d DCA 2005).This court's decision in Salyers v. Good, 443 So.2d 152, 153 (Fla. 2d DCA 1983), provides guidance in this case. In Salyers, the parties' settlement agreement, which was adopted into the dissolution j......
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Cone v. Cone, 83-555
...See Coalla v. Coalla, 330 So.2d 802 (Fla. 2d DCA 1976). See also Baldi v. Baldi, 323 So.2d 592 (Fla. 3d DCA 1975).2 See Salyers v. Good, 443 So.2d 152 (Fla. 2d DCA 1983). ...
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Taylor v. Taylor, 94-1995
...the trial court's interpretation of the meaning of a provision in the marital settlement agreement. See, e.g., Salyers v. Good, 443 So.2d 152 (Fla. 2d DCA 1983); Maclaren v. Maclaren, 616 So.2d 104 (Fla. 1st DCA AFFIRMED as MODIFIED. WEBSTER, MICKLE and VAN NORTWICK, JJ., concur. ...
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Phillips v. Phillips, 2D10–3147.
...time, the parties may either reach an agreement to sell the property or may force the sale through a partition. See Salyers v. Good, 443 So.2d 152, 154 (Fla. 2d DCA 1983) (“Upon the failure to effect an agreeable sale within a reasonable time, either party had a right to force a sale throug......