Burnett v. Burnett

995 So. 2d 519, 2008 WL 2219567
CourtDistrict Court of Appeal of Florida
DecidedMay 30, 2008
Docket2D07-3494
StatusPublished
Cited by4 cases

This text of 995 So. 2d 519 (Burnett v. Burnett) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burnett v. Burnett, 995 So. 2d 519, 2008 WL 2219567 (Fla. Ct. App. 2008).

Opinion

995 So.2d 519 (2008)

Robert BURNETT, Appellant,
v.
Kenya BURNETT, Appellee.

No. 2D07-3494.

District Court of Appeal of Florida, Second District.

May 30, 2008.

*520 Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant.

Starlett M. Miller, St. Petersburg, for Appellee.

ALTENBERND, Judge.

Robert Burnett, the Husband, appeals a final judgment of dissolution of marriage that awarded his Wife, Kenya Burnett, primary residential responsibility of the couple's two minor children. The final judgment also awarded the Wife exclusive use and possession of the marital home and made certain financial provisions involving child support that the Husband challenges. A convergence of circumstances made the trial court's task quite difficult in this case. Ultimately, the trial court concluded that the children needed the stability of the family home. Even though the Wife had not been living in the home for a significant period, the trial court awarded her primary residency of the children and the exclusive use and possession of the home, requiring the Husband to vacate the residence. Unfortunately, the evidence does not suggest that this couple has the financial ability to maintain this house as tenants in common if either parent is living in a separate location. Because the long-term ownership of the home was central to both the trial court's decision on child custody and on several financial issues, we must reverse the substantive provisions of the judgment regarding child custody, child support, and the marital home and remand for further proceedings.

I. PROCEEDINGS IN THE TRIAL COURT

The parties were married in 1996 but had been together for twenty-one years when the Husband filed his petition for dissolution of marriage on September 9, 2005. Together, they had five children. *521 At the time of the final hearing, only two of the children were minors. The parties' only significant asset was the marital home, which was owned jointly and valued at approximately $185,000. The home was subject to a mortgage of $131,000. The note and mortgage were in the Husband's name only, and the monthly payment was approximately $1500.

When the parties separated in early 2005, the Wife left the residence while the Husband remained in the marital home with the children and paid the expenses associated with the home. When he filed his petition for dissolution of marriage, the Husband also filed a financial affidavit indicating he earned a monthly net income of $3290 from his employment as a wastewater technician. In April 2006, the Wife filed a financial affidavit indicating she was employed at a healthcare facility as an admissions director earning net monthly income of $2300. After a hearing in August 2006, the trial court ordered the Wife to pay $916 per month in temporary child support, apparently based upon these income figures. Although the Wife's initial pro se pleadings had conceded the Husband should have primary residential responsibility for the children, the Wife amended her pleadings in late August 2006 to request primary residency of the children.

When the parties appeared for trial in June 6, 2007, things had substantially changed for each of them. The Husband had lost his job and was unemployed. He testified he was volunteering for an organization that provided outreach to homeless men. He believed that the organization was going to hire him for a paid position within a few weeks with a yearly salary of $25,000. The Wife testified that she too was unemployed and also volunteering for a religious organization. She hoped that the volunteer position would become a paid position, but she had no details regarding the income this job might provide. From the separation in April 2005 until the final hearing in June 2007, the Wife had paid the Husband only $324 in support, notwithstanding the August 2006 order requiring her to pay child support of $916 per month. Thus, the Husband had provided the sole financial support for the children and had paid the monthly mortgage payments on the marital home.

Although both parties presented evidence to the court, neither party presented evidence that would have permitted the trial court to adequately address the financial issues.[1] On its face, the evidence reflected two unemployed persons with no income, and there was no evidence from which the court could have imputed income. Although the Husband testified to an expected gross salary, there was no indication what his net monthly income might be or whether the job would provide health or life insurance.

The parties spent the majority of the hearing presenting evidence regarding child custody. Neither parent was unfit to be given custody, and both had provided primary care for the children in the past. As is often the case, each party had areas of weakness or challenges relating to their ability to serve optimally as the primary custodial parent. Unfortunately, neither party provided the trial court with a realistic proposal to resolve the couple's financial *522 issues while adequately protecting the interests of the two minor children.

Ultimately, the court concluded that it could not decide the issue of child support because the parties had presented insufficient evidence in this regard. The court decided to effectively bifurcate the proceedings by ruling on the issue of child custody but reserving jurisdiction to make a final determination of child support. In making the custody determination, the court relied heavily on the stability the marital home could provide for the children. In the final judgment, the trial court specifically stated that the factor provided for in section 61.13(3)(d), Florida Statutes (2007), which requires a court to assess the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity, was a "significant" factor in this case:

The minor children have been residing in the ... jointly owned marital home. They have attended ... an elementary school, K through 5. The ten-year-old is going into fifth grade and the five-year-old is enrolled for school there next year. This has been the ten-year-old's school since she started school, and it appears to the Court that this is the intended school of both of the parties for the youngest child also, at least through elementary school, and the testimony has been that the oldest child has done well there, is an A student, seems happy. By all evidence shown ..., it appears that this is a stable situation in terms of schooling, and it also appears to the Court that the home situation and staying in the home is a stable and desirable environment for the children, rather than having to vacate the home and live somewhere else.

In considering the factor in section 61.13(3)(e), the permanence as a family unit of the existing or proposed custodial home, the court found "that the marital home is a permanent home for the children and the only home proposed by either of the parties in this case, and that is where the children should remain. The question is which of the parents will remain there with the children."

Based upon the court's conclusion that the home itself provided stability and permanency for the children, regardless of which parent might reside there with them, the court considered the other best interest factors and concluded they weighed in favor of awarding the Wife primary residential responsibility for the children. The court thus also ordered that the Wife would have temporary exclusive use and possession of the home until the children were emancipated.

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Cite This Page — Counsel Stack

Bluebook (online)
995 So. 2d 519, 2008 WL 2219567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnett-v-burnett-fladistctapp-2008.