Smith v. Moughan, 82-1641

• Decision Date: 08 December 1983
• Docket Number: No. 82-1641,82-1641
• Citation: 442 So.2d 338
• Parties: Diane SMITH, etc., Appellant, v. Robert Gerald MOUGHAN, Appellee.
• Court: Florida District Court of Appeals

Page 338

442 So.2d 338

Diane SMITH, etc., Appellant, v. Robert Gerald MOUGHAN, Appellee.

No. 82-1641.

District Court of Appeal of Florida Fifth District.

Dec. 8, 1983.

W.J. Heffernan, Jr., of Heffernan & Rabinowitz, P.A., Altamonte Springs, for appellant.

Gregory M. Wilson of Taylor & Wilson, Orlando, for appellee.

FRANK D. UPCHURCH, Jr., Judge.

Appellant Diane Smith seeks review of an order denying her request to partition property which she and her former husband, appellee Robert Moughan, owned as tenants in common since the dissolution of their marriage in 1977. Prior to trial in this matter, counsel for both parties filed a joint stipulation of facts to simplify and streamline the issues to be heard by the court. ¹ After noting that he was familiar with the issues in the case and after hearing argument, the court concluded that appellant was not entitled to partition because she had waived this right by agreement.

At the time of the dissolution, appellee was not represented by counsel. However, he had attended several settlement conferences at the offices of appellant's attorney. Apparently appellant at that time had no desire to retain any interest in the marital home because it was only at her husband's insistence that she retained her right to one-half of the net proceeds upon the sale of the house.

No children were born of the marriage and both parties have since remarried. Upon remarriage, appellee continued to reside in the home with his new wife and child. He has made all mortgage payments and has made additional improvements.

The court below ruled that appellant was bound by the property settlement agreement which she executed and which was later incorporated into the final judgment of dissolution. Paragraph three of the agreement provides as follows:

Real Property Owned by the Parties as Tenants by the Entirety. The parties are owners by the entirety of certain real property, described as follows:

Lot 15, Block E, Sun Haven 1st Addition, as recorded in Plat Book X, Page 110, Public Records of Orange County, Florida.

The Husband shall continue to have the right to occupy the home and the Husband shall assume and make all mortgage payments upon the same. The Husband and Wife hereby mutually agree to place the property for sale in the event the Husband decides not to occupy the home, upon terms mutually agreeable to each. The Husband shall make all necessary repairs and keep the property maintained until the property is sold. Upon the sale of the home, the net proceeds shall be divided between the parties equally after deducting the normal expenses of sale.

The fairness of the agreement was not challenged below. As part of the agreement, appellant received certain personal property including the household furnishings. The extent and value of these items are not a part of the record. As a consequence, neither the trial court nor this court has any basis in the record for concluding that appellant was inequitably treated in the dissolution settlement. ²

We note that appellant could have transferred her entire interest in the home to her husband had she been so inclined. Therefore, it follows that she could, by agreement, transfer something less than her entire interest. Regarding agreements to waive partition, the Florida Supreme Court has specifically held as follows:

[T]here is no doubt that the law favors the right to partition. And the general rule is that partition is a matter of right.

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But there are exceptions to the rule. The right to partition may be waived, or one may be estopped to enforce the right by an agreement not to partition either express or implied.

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An agreement never to partition lands or one which unduly or unreasonably restricts partition is generally held to be unenforceable as an unreasonable restraint on the use and enjoyment of property, and therefore contrary to public policy.

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However, under our system of government, our guarantees of right to contract and rights of ownership and use of property, there appears to us to be no valid reason why the owners of undivided interests in property cannot contract not to partition land, except where the prohibition of partition is for an unreasonable and/or indefinite period of time, or is otherwise so unreasonably restrictive as to be contrary to public policy.

We must therefore hold that while partition is a matter of right to those holding undivided interests in lands, such right may be waived or the holder thereof estopped to assert the right by an express or implied agreement, otherwise enforceable, providing said agreement not to partition be for a reasonable and definite period of time and not otherwise unduly restrictive. An agreement not to partition during the life of any of the tenants does not appear to us to be for an unreasonable time. (emphasis added; citations omitted)

Condrey v. Condrey, 92 So.2d 423, 426 (Fla.1957).

Ordinarily exclusive possession of the marital home is awarded by the court as a facet of support and will terminate upon remarriage of the spouse in possession. See Anderson v. Anderson, 424 So.2d 943 (Fla. 5th DCA 1983); Harvey v. Harvey, 411 So.2d 324 (Fla. 5th DCA 1982); Caldwell v. Caldwell, 400 So.2d 1270 (Fla. 5th DCA 1981). However, there is nothing to prevent a party from agreeing to a particular arrangement as the appellant did here.

AFFIRMED.

DAUKSCH, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge, dissenting.

I dissent in this case for two reasons. First, the majority opinion leaves intact an interpretation of a property settlement agreement that I think is patently unreasonable and unfair. The trial judge also thought his interpretation was inequitable because he said so:

I hope the District Court reverses me on the grounds that its not equitable, but I don't think I can do it on those grounds.

Second, the lower court's interpretation violates the public policy articulated by this court regarding the right of an ex-spouse to petition for partition and sale of a jointly-owned marital residence after the other ex-spouse, who had exclusive possession of the residence, has remarried.

The record in this case is woefully brief. ¹ The entire transcript consists of the trial attorneys' arguments, but no live testimony. Therefore, the trial judge must have based his judgment on the joint stipulation of facts prepared by trial counsel, the property settlement agreement itself, and a few lines from a deposition that were quoted in the stipulation, because the deposition itself was not put into evidence. ²

The trial court's construction of the property settlement agreement in this case is not based on conflicting testimony or evidence. It is therefore not entitled to the normal presumption of correctness usually accorded to lower court judgments by appellate courts where the credibility of witnesses is a factor. On the basis of this record, our court is in as good a position to interpret the meaning of the property settlement agreement as was the lower court. See Hoffman v. Condermann, 146 So.2d 776 (Fla. 2d DCA 1962).

The stipulation of facts discloses that the parties married in 1973, and purchased the residence in 1975, taking title to it as tenants by the entireties. They made equal contributions to its purchase and both paid for various improvements (adding a screened room, new carpeting, and a dishwasher), and the mortgage and tax payments. They had no children. The parties separated and divorced in 1977. At that time, the ex-husband insisted that the ex-wife retain her one-half interest in the house. No alimony of any kind was awarded to either party, and neither claimed a special equity in the residence. Both have since remarried. The ex-husband has had exclusive occupancy of the residence since 1977. He has moved a new wife and child into the residence, and he has made additional improvements (dropped ceiling in kitchen and solar system heat recovery unit).

The issue in this case is the proper interpretation of paragraph 3 of the parties' property settlement agreement, which was incorporated into their dissolution judgment. Paragraph 3 provides:

The Husband shall continue to have the right to occupy the home and the Husband shall assume and make all mortgage payments upon the same. The Husband and Wife hereby mutually agree to place the property for sale in the event the Husband decides not to occupy the home, upon terms mutually agreeable to each. The Husband shall make all necessary repairs and keep the property maintained until the property is sold. Upon the sale of the home, the net proceeds shall be divided between the parties equally after deducting the normal expenses of sale.

The ex-wife contends that paragraph 3 does not entitle her ex-husband to exclusive possession of the residence indefinitely, and perhaps for his lifetime. She sought to partition the property after he had exclusive possession of the residence for six years following their divorce. He claimed he has exclusive, indefinite rights to occupy the property. The trial court agreed with him, and it denied the wife's right to partition.

In deciding the meaning of unclear or unspecific contract provisions such as the one involved in this case, a court should select an interpretation that is reasonable and fair to both parties, based on their circumstances and probable intent at the time the contract was formed. James v. Gulf Life Insurance Company, 66 So.2d 62 (Fla.1953). Both of these parties were equal owners and made equal contributions to their investment in the residence. Neither party claimed a special equity or right to alimony from the other. Under normal circumstances, the residence would have been sold and the net proceeds split equally shortly after the dissolution. See Mayberry v. Mayberry, 437 So.2d 785 (Fla. 2d DCA 1983); Hoskin v. Hoskin, 349 So.2d 755 (Fla. 3d DCA 1977).

It is patently unfair and inequitable to bar the...