Tinsley v. Tinsley, 85-2223

• Decision Date: 24 June 1986
• Docket Number: No. 85-2223,85-2223
• Citation: 490 So.2d 205,11 Fla. L. Weekly 1417
• Parties: 11 Fla. L. Weekly 1417 Bonnie Marie TINSLEY, n/k/a Bonnie Marie Burke, Appellant, v. Calvin W. TINSLEY, III, Appellee.
• Court: Florida District Court of Appeals

Page 205

490 So.2d 205

11 Fla. L. Weekly 1417

Bonnie Marie TINSLEY, n/k/a Bonnie Marie Burke, Appellant, v. Calvin W. TINSLEY, III, Appellee.

No. 85-2223.

District Court of Appeal of Florida Third District.

June 24, 1986.

Hershoff & Levy and Jay M. Levy, Miami, for appellant.

Ira L. Dubitsky, Miami, for appellee.

Before SCHWARTZ, C.J., and BASKIN and JORGENSON, JJ.

JORGENSON, Judge.

The wife in this marriage dissolution proceeding, Bonnie Tinsley, appeals from a post-judgment order entered in favor of the husband, Calvin Tinsley, on his motion for clarification.

Initially, the final judgment provided that the parties would each pay half of the mortgage payments, insurance, and taxes on the home. Bonnie would have exclusive use and occupancy of the home until her remarriage, at which time the house would be sold and the proceeds distributed equally between the parties. Bonnie moved for a rehearing, seeking, among other things, an award of lump sum alimony and an increase in maintenance and support. In response, the trial court modified the final judgment by requiring that Calvin pay all of the mortgage payments, insurance, and taxes on the home. The modified final judgment contained no provision for Calvin to receive a credit from Bonnie's share of the proceeds from the sale of the home. Bonnie remarried in 1984, and the house was sold in 1985. Calvin moved for a clarification of the modified final judgment. He sought a post-judgment decree by the trial court that he was entitled to a credit from Bonnie's share of the proceeds to reimburse him for her share of the mortgage payments, insurance, and taxes on the home. The court granted his motion and Calvin was given credit for $12,141.46.

On appeal, Bonnie concedes that had Calvin appealed the modified final judgment he would have been entitled to receive credit for her share. She contends, however, that the trial court's order is not a clarification of the judgment but rather is an impermissible modification of the rights of the parties. We disagree. The trial court's order merely clarified what is well-settled law. Calvin made the mortgage payments and, as a matter of law, is entitled to credit.

When spouses own property as tenants by the entirety, upon divorce they become tenants in common. § 689.15, Fla.Stat. (1985). As such, the tenants have joint responsibilities, Abella-Fernandez v. Abella, 393 So. 2d 40 (Fla. 3d DCA 1981), and "have a mutual obligation to pay the charges upon the property," Singer v. Singer, 342 So.2d 861, 862 (Fla. 1st DCA 1977); Mintz v. Ellison, 233 So.2d 156, 157 (Fla. 3d DCA 1970); see Maroun v. Maroun, 277 So.2d 572 (Fla. 3d DCA 1973). This statutory property obligation is distinct from any obligation which may result from the trial court's final judgment granting dissolution of the marriage. See Spikes v. Spikes, 396 So.2d 1192 (Fla. 3d DCA 1981). It is impermissible, therefore, to require one spouse, by his payments on the house, to increase the equity of the other spouse. Kohn v. Kohn, 423 So.2d 575 (Fla. 1st DCA 1982); Rubino v. Rubino, 372 So.2d 539 (Fla. 1st DCA 1979); Singer.

Thus, a person who makes mortgage payments on a home jointly held with the ex-spouse as tenants in common is entitled to a credit for the ex-spouse's share of the ownership expenses. Wertheimer v. Wertheimer, 487 So.2d 90 (Fla. 3d DCA 1986); Price v. Price, 389 So.2d 666 (Fla. 3d DCA 1980), rev. denied, 397 So. 2d 778 (Fla.1981); Rutkin v. Rutkin, 345 So.2d 400 (Fla. 3d DCA 1977). The fact that possession of the marital home is awarded to one spouse...