Todd v. Todd, 98-3684.

• Decision Date: 27 May 1999
• Docket Number: No. 98-3684.,98-3684.
• Parties: Paula C. TODD, Appellant, v. Kenneth M. TODD, Appellee.
• Court: Florida District Court of Appeals

734 So.2d 537

Paula C. TODD, Appellant, v. Kenneth M. TODD, Appellee.

No. 98-3684.

District Court of Appeal of Florida, First District.

May 27, 1999.

Nancy N. Nowlis of Zisser, Robison, Brown, Nowlis and Wedner, P.A., Jacksonville, for Appellant.

Wayne D. Clance, Jacksonville, for Appellee.

PER CURIAM.

In this appeal from a final judgment of dissolution of marriage, the former wife seeks review of three issues: (1) the award to the former husband of exclusive use and possession of the marital home; (2) the amount of alimony which the former husband was ordered to pay to the former wife; and (3) the amount of the attorney's fee award to the former wife. We reverse in regard to the first two issues and remand the final judgment for further proceedings. The former husband filed a petition for dissolution of the parties' 19-year marriage. The petition reflects that the parties have one child, a son, born November 8, 1985. The former wife filed an answer and a counter-petition for dissolution of marriage. Each party requested, among other things, primary residential custody of their son, exclusive use and possession of the marital home, and child support.

The unreported final hearing took place May 20, 1998. On June 5, 1998, the trial court entered an order granting the former husband immediate primary custody of the parties' child, and directing the former wife to vacate the marital home by 5:00 p.m., June 7, 1998.¹ The former wife was authorized to remove only her personal effects, such as clothing.

The record reflects that the parties had been unable to agree amicably on a division of personal property. On August 12, 1998, the trial court conducted a hearing which had been scheduled to address the property issues and attorney's fees.

The next hearing was conducted August 19, 1998. Outside the presence of the parties, the court and the parties' attorneys reviewed the various provisions to be included in the proposed final order. With regard to the provisions for the former husband's exclusive use and occupancy of the marital home, the trial court indicated the order should specify that the husband's use and possession would terminate when the parties' child is no longer eligible to receive child support, or the husband is no longer the primary custodial parent. The former wife's attorney suggested the husband's remarriage would constitute another reason for termination of the husband's exclusive use and possession. The trial court expressed the view that the husband's remarriage would not necessarily change the disposition of the marital residence. After the parties entered chambers, and after discussion concerning the visitation provisions to be included in the final judgment, the hearing concluded without a final disposition of personal property.

On August 21, 1998, the trial court issued written "Findings of Fact." The court placed primary physical custody of the parties' son with the husband, and awarded the marital home to the husband "until the child turns 18, graduates from high school, marries, becomes self supporting or dies." With regard to alimony and child support, the court imputed an annual salary of $18,200.00 to the former wife. The court found the former wife was entitled to permanent periodic alimony due to the length of the marriage and her present and continuing inability to earn much over $20,000.00 per year, while the former husband has an income of $50,000.00, with employee benefits. The "Findings" document states in pertinent part:

The Court intends to employ the following formula for division of the imputed family income for purposes of determining child support and alimony.

The Court finds the Wife's needs will be approximately one-third of the total household income available after the imputation. Allowing a figure of $750 a month in permanent alimony will, after calculating in a guideline child support amount of $387 monthly, leave her with approximately $1,523 in total monthly income. The Husband's net income plus child support will be $2,997.62, or almost two-thirds of the total family income.

The record contains the attorney's fee statement submitted by wife's counsel, reflecting a total fee in the amount of $7,896.25.

The Final Judgment of Dissolution of Marriage was filed August 21, 1998. In the final judgment, the court ordered the former wife to pay child support in the amount of $387.00 per month. The former husband was directed to pay permanent periodic alimony in the amount of $750.00 per month. The former husband was awarded exclusive use and possession of the marital home until:

(A) He is no longer the primary custodian of the minor child or

(B) The child reaches the age of 18 or graduates from high school, whichever shall last occur, or

(C) The child dies, becomes emancipated or marries or

(D) Further Order of this Court.

The court divided the parties' personal property, and specifically reserved jurisdiction "(A) to enter any and all Orders necessary to be entered to implement this Final Judgment, including QUADRO'S (B) to enforce or modify this Final Judgment upon proper application by either party except as to paragraph one hereof."

On August 31, 1998, the former wife's attorney filed a motion for rehearing or amendment of the final judgment. Rehearing was denied summarily.

With regard to the first issue concerning the trial court's disposition of the marital residence, appellant raises two sub-issues, both of which have merit. First, appellant maintains the court erred in awarding exclusive use and possession of the marital home to the former husband without including a provision that such use and possession would terminate in event of the former husband's remarriage. We agree. An award of exclusive use and possession of the marital home must serve a special purpose, such as providing a benefit for a minor child. See Kirkland v. Kirkland, 568 So.2d 494, 495-496 (Fla. 1st DCA 1990), citing Duncan v. Duncan, 379 So.2d 949 (Fla.1980). See also Sency v. Sency, 478 So.2d 432, 433 (Fla. 5th DCA 1985)("Exclusive possession given an exspouse and children of a marriage always constitutes an aspect of child support in kind.").

An award of exclusive use and possession should specify the period of time for possession, and should include an express provision for termination of exclusive use and possession when the minor child attains the age of eighteen, as well as a provision that the award may be terminated if the party in residence remarries. See Kirkland, 568 So.2d at 496; Messal v. Messal, 424 So.2d 932, 934 (Fla. 1st DCA 1983); White v. White, 413 So.2d 132 (Fla. 1st DCA 1982); Savage v. Savage, 556 So.2d 1213, 1214 (Fla. 2d DCA 1990); Harvey v. Harvey, 411 So.2d 324, 325 (Fla. 5th DCA 1982). It is error to extend exclusive use and possession of the marital home beyond the attainment of majority of a minor child, or remarriage of the party in residence, in the absence of a showing of special circumstances to support continuation of exclusive use and possession. See Wilson v. Wilson, 657 So.2d 961 (Fla. 1st DCA 1995). Accord Morgenstern v. Morgenstern, 619 So.2d 327, 328 (Fla. 3d DCA 1993).

Second, appellant maintains the final judgment is silent as to the parties' obligation to pay ownership expenses of the marital home. In addition, no provision was made in the final judgment with regard to credits or setoffs when the marital home is sold. Appellee responds that the statutory clarity of section 61.077, Florida Statutes (1997), obviates any duty of the circuit court to restate statutory absolutes. Section 61.077, Florida Statutes, provides in pertinent part:

A party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties' settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributing assets or debts specifically provides that certain credits or setoffs are allowed or given at the time of the sale....

The effective date of the act was October 1, 1997. See Ch. 97-249, § 3, Laws of Fla. Section 2 of the act states: "The provisions of this act apply to all settlement agreements entered into or actions filed on or after October 1, 1997." In this case, the petition for dissolution of marriage was filed January 14, 1997, before the effective date of section 61.077. Moreover, there was no...