Smith v. Smith
| Decision Date | 07 March 1985 |
| Docket Number | No. 83-1828,83-1828 |
| Parties | 10 Fla. L. Weekly 627 Alexander SMITH, Appellant, v. Svetlana SMITH, Appellee. |
| Court | Florida District Court of Appeals |
Edward C. Beshara of Leemis & Bolves, Winter Park, for appellant.
Wallace F. Stalnaker, Jr., Casselberry, for appellee.
This case involves the right of a co-tenant to rental from another co-tenant.
In her dissolution complaint the wife prayed for exclusive possession of the marital home or in the alternative that it be partitioned. The final judgment awarded the wife the exclusive possession of the marital home until the youngest child reached the age of eighteen, or the wife remarried, moved out of the house or the house was sold by mutual agreement. During the marriage the title to the house had been held as an estate by the entireties and, upon dissolution of the marriage the parties became tenants in common by virtue of section 689.15, Florida Statutes. The wife remarried on November 27, 1982, and her new husband moved in. By virtue of the occurrence of that condition subsequent the wife's right to exclusive possession of the marital home expired at that time. The ex-husband filed a petition for rule to show cause why the former wife should not be held in contempt 1 and also requested that the wife be ordered to pay rental while she remained in the former marital home. The wife sought to have the former husband held in contempt. After hearing, the court found neither party in contempt but ordered the house sold. The court also denied the husband's motion for rental and the husband appeals citing Adkins v. Edwards, 317 So.2d 770 (Fla. 2d DCA 1975). We affirm.
Adkins was a partition action, not a contempt proceeding. A motion for a civil contempt order may be a proper method of initiating a proceeding to enforce the provisions of some prior court order but it is not the proper pleading to initiate a partition action. That portion of the final judgment herein that provides that upon the elimination of exclusive possession "the house shall then be sold" is surplusage and somewhat of a gratuity because when the right of exclusive possession by the wife expired either tenant had the right to have a partition. That right exists by virtue of law (chapter 64, Florida Statutes) and not because of the provision in the final judgment. The circuit court has subject matter jurisdiction to partition jointly owned property when that jurisdiction is invoked...
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