Sanders v. Sanders, 77-938

Decision Date16 November 1977
Docket NumberNo. 77-938,77-938
Citation351 So.2d 1126
PartiesMary E. SANDERS, Appellant, v. Robert L. SANDERS, Appellee.
CourtFlorida District Court of Appeals

L. Guerry Dobbins, Jr., of Law Offices of Walter W. Manley, Lakeland, for appellant.

William A. Seacrest of Harris & Seacrest, P. A., Lakeland, for appellee.

McNULTY, JOSEPH P. (Ret.), Associate Judge.

On this appeal, Mary E. Sanders argues that the trial court erred in ordering the partition of the marital home as part of a judgment of dissolution of marriage. For the reasons hereinafter stated we agree and reverse that portion of the judgment.

The appellee/husband filed the petition herein for dissolution. He also asked the court to make an equitable distribution of jointly-owned property. Appellant/wife then filed an answer and a counterpetition in which she requested ownership of the marital home. After a hearing on the matter, the trial court granted the dissolution and ordered the marital home sold and the proceeds divided between the parties.

This court has long held that a judge may partition the jointly-owned property of the parties in a divorce action only if the due process requirements of Chapter 64, Florida Statutes (1975), relating to partition are met. Carlsen v. Carlsen, 346 So.2d 132 (Fla. 2d DCA 1977); Rankin v. Rankin, 258 So.2d 489 (Fla. 2d DCA 1972). No such compliance is evident in this case. First of all, the husband's petition seeking division of the property does not set forth the required allegations as set forth in Section 64.041, Florida Statutes (1975). Furthermore, the final judgment itself does not provide for the appointment of commissioners or a master, as may be appropriate, in compliance with Section 64.061, Florida Statutes (1975) nor does it provide for the manner and conditions of sale pursuant to Section 64.071, Florida Statutes (1975).

We reject Mr. Sanders' argument that the prayer for an equitable "division" of property in his petition was sufficient to serve as a basis for the court's order of partition. While such a prayer may serve as a basis for division of property when appropriate to serve alimony or special equity considerations, it may not serve as a basis for partition. Compare Butcher v. Butcher, 239 So.2d 855 (Fla. 2d DCA 1970) with Coykendall v. Coykendall, 260 So.2d 558 (Fla. 2d DCA 1972).

In view of what we have said we must reverse that part of the final judgment in which the court ordered partition. We remand the case t...

To continue reading

Request your trial
9 cases
  • Sammons v. Sammons, s. 85-234
    • United States
    • Court of Appeal of Florida (US)
    • 3 Diciembre 1985
    ...complied with the requirements of Chap. 64, Fla.Stat. (1983), see Smith v. Smith, 399 So.2d 1025 (Fla. 3d DCA 1981); Sanders v. Sanders, 351 So.2d 1126 (Fla. 2d DCA 1977); O'Hara, Ms. Sammons is of course free to seek such relief after remand. Since the Colorado dissolution has rendered the......
  • Weider v. Weider, s. 80-744
    • United States
    • Court of Appeal of Florida (US)
    • 12 Agosto 1981
    ...must provide for partition in accordance with the procedures set forth in Chapter 64, Florida Statutes (1979). Sanders v. Sanders, 351 So.2d 1126 (Fla. 2nd DCA 1977); Rankin v. Rankin, 258 So.2d 489 (Fla. 2nd DCA 1972). The failure of the pleadings in this case to satisfy the statutory requ......
  • Poitier v. Poitier, s. 83-1394
    • United States
    • Court of Appeal of Florida (US)
    • 13 Noviembre 1984
    ...in the absence of an appropriate request and compliance with the requirements of Chapter 64, Florida Statutes (1983). Sanders v. Sanders, 351 So.2d 1126 (Fla. 2d DCA 1977). See Muhlrad v. Muhlrad, 375 So.2d 24 (Fla. 3d DCA 1979); § 689.15, Fla.Stat. (1983). Accordingly, the portion of the j......
  • Murbach v. Murbach, 85-2824
    • United States
    • Court of Appeal of Florida (US)
    • 2 Julio 1986
    ...for partition. Wiley v. Wiley, 485 So.2d 2 (Fla. 5th DCA 1986); Fries v. Fries, 445 So.2d 1070 (Fla. 4th DCA 1984); Sanders v. Sanders, 351 So.2d 1126 (Fla. 2d DCA 1977); Rankin v. Rankin, 258 So.2d 489 (Fla. 2d DCA 1972). We, therefore, strike the first two sentences of the foregoing parag......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT