Wescott v. Wescott
| Decision Date | 27 March 1986 |
| Docket Number | No. 85-392,85-392 |
| Citation | 487 So.2d 1099,11 Fla. L. Weekly 741 |
| Parties | 11 Fla. L. Weekly 741 Wanda B. WESCOTT, Appellant/Cross Appellee, v. William J. WESCOTT, Appellee/Cross Appellant. |
| Court | Florida District Court of Appeals |
James R. Lavigne, Maitland, for appellant/cross appellee.
Jack B. Nichols, of Jack B. Nichols, P.A., Orlando, for appellee/cross appellant.
Wanda Wescott appeals a final judgment ordering the partition and sale of the marital residence. Her former husband, William Wescott, cross appeals a final judgment which denied his tort claim for the wife's refusal to sell or rent the home.
In the judgment of dissolution of the parties' marriage in 1981, the husband was given exclusive possession of the home so long as the children, who were placed in his custody, were minors. In 1984, after the youngest child turned eighteen years old, the husband moved into another home and attempted to sell the marital residence but the wife was uncooperative. The husband then sought partition. In October, 1984, the wife moved into the home and claimed it as her homestead.
The first point raised by the wife is that the trial court erred in entering a judgment of partition of her homestead. At trial, the husband testified that he had placed a mortgage on the marital home to secure the unpaid attorney's fees in this case. The wife argues that the partition proceeding was in effect a forced sale for the benefit of the husband's creditors 1 and that since she claimed the property as her homestead, the partition and sale of the property was barred by the Florida Constitution.
In November, 1984, the electors approved an amendment to Article X, Section 4 of the Florida Constitution which extended the homestead exemption to all natural persons. Article X, Section 4, now provides in part as follows:
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead ...
In Tullis v. Tullis, 360 So.2d 375 (Fla.1978), the Florida supreme court addressed the question whether Article X, Section 4 of the 1968 Florida Constitution prohibited the partition of homestead property upon suit brought by another cotenant owning an undivided interest in that property.
The parties in Tullis lived during their marriage in a home owned by them as tenants by the entirety. Prior to the dissolution of their marriage the wife moved from the home, but the husband's minor daughter by a previous marriage continued living in the home with the husband. The final judgment of dissolution made no disposition of the parties' respective interests in the home, and did not award exclusive possession to either party. The husband continued to live in the home with his daughter, and the wife brought suit for partition of the property, then owned by the parties as tenants in common. Both parties agreed that the property was not divisible. The trial court rejected the husband's claim that the homestead provision in the state constitution prevented the forced sale of this property. The appellate court affirmed the trial court's ruling, holding that the homestead provision was never intended...
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