Dorsett v. Dorsett

902 So. 2d 947, 2005 WL 1335241
CourtDistrict Court of Appeal of Florida
DecidedJune 8, 2005
Docket4D04-74
StatusPublished
Cited by21 cases

This text of 902 So. 2d 947 (Dorsett v. Dorsett) 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
Dorsett v. Dorsett, 902 So. 2d 947, 2005 WL 1335241 (Fla. Ct. App. 2005).

Opinion

902 So.2d 947 (2005)

Shirley DORSETT, Appellant,
v.
Granvill DORSETT, Appellee.

No. 4D04-74.

District Court of Appeal of Florida, Fourth District.

June 8, 2005.

*949 Troy W. Klein of Troy W. Klein, P.A., West Palm Beach, for appellant.

Donald C. Dowling of Spinner, Dittman, Federspiel & Dowling, LLP, Delray Beach, for appellee.

POLEN, J.

This appeal arises from a Final Judgment of Dissolution of Marriage. For the reasons explained herein, we hold that the trial court erred by adopting the parties' purported oral agreements regarding the use and possession of the former marital home and the former husband's child support obligation. The trial court also erred by distributing the parties' assets without complying with the requirements of section 61.075, Florida Statutes. We find no error, however, in the trial court's requirement that the former wife contribute toward the mortgage during her period of exclusive use and occupancy of the former marital home. Accordingly, we affirm in part, reverse in part, and remand.

The parties were married in 1993 and have one child, born on June 7, 1992. The former husband was and remains the sole owner of the marital home, which was his premarital property.

After the parties filed for dissolution, they were referred to mediation, after which a Mediation Conference Report was issued on July 9, 2003, stating that the parties were still negotiating and may return to mediation.

Subsequently, on November 10, 2003, the former husband filed a Motion to Enforce Settlement Agreement, stating that:

1. On November 3, 2003, at the office of the Wife's attorney, the parties and their attorneys settled, resolved and agreed upon all (100%) of the issues in this case.
2. The Wife does not wish to abide by this agreement.
3. The Agreement was fair and reached fairly.

*950 There is no purported "Settlement Agreement" included in the record below and it is not specifically referred to by the trial court in the Final Judgment of Dissolution of Marriage. The former husband admits as much in his answer brief, stating that "[b]ecause there was no signed marital settlement agreement, the trial judge laboriously and carefully reviewed and set forth the agreements the parties had orally reached, as they informed the trial judge."

A contested Final Hearing took place on November 24, 2003. Since no court reporter was present, no transcript of the proceeding is available.[1] The Final Judgment states that the trial court heard testimony regarding the "partial agreements to certain aspects of this case which are approved by the Court and included in this Final Judgment." The exact nature of these purported "partial agreements" is unclear in that they apparently were not reduced to writing nor read into the record.[2]

The trial court's Final Judgment comes to the appellate court "with a presumption of correctness and cannot be reversed or set aside absent a showing that the court abused its discretion or erroneously applied a rule of law." Howard v. Howard, 467 So.2d 768, 771 (Fla. 1st DCA 1985). Where an error of law appears on the face of the order being appealed, the lack of a trial transcript does not preclude appellate review. Wolfe v. Nazaire, 758 So.2d 730, 733 (Fla. 4th DCA 2000). Furthermore, "[e]ven when no trial transcript is provided to the reviewing court, `[f]ailure to make sufficient findings regarding value of property and identification of marital assets and debts constitutes reversible error and requires remand for appropriate findings to be made.'" Id. (internal citations omitted).[3] In the present case, appellate review is appropriate because various errors of law appear on the face of the Final Judgment.

First, we hold that the trial court erred in adopting the parties' purported oral agreement regarding the use and possession of the former marital home. Under the Final Judgment, exclusive use and possession of the marital home will terminate on June 7, 2009, upon the minor child reaching the age of seventeen. The former wife argues that she and the minor child will be forced to vacate the home, and possibly to change school districts, notwithstanding the fact that the child will not have attained the age of majority and *951 most likely will be between her junior and senior years of high school.

It is incumbent upon the trial court to ensure that any purported agreement or arrangement between a child's parents does not shortchange the child's interests. "It is undisputed, and should be indisputable, that a trial court's responsibility to the child cannot be abdicated to any parent, any expert. That heavy responsibility mandates that a court is not bound by any agreement between parents." Lane v. Lane, 599 So.2d 218, 219 (Fla. 4th DCA 1992); see, e.g., Sotoloff v. Sotoloff, 745 So.2d 959 (Fla. 4th DCA 1998) (holding that a custodial parent may not contract away a child's right to support).

With regard to exclusive possession of the marital home, this court has held:

[a]lthough the failure to award exclusive possession of the marital home unto the custodial parent until all of the children attain majority or become emancipated would not always constitute error, such awards are so frequently ordered that they have become a generally accepted principle of the law of divorce.

Zeller v. Zeller, 396 So.2d 1177, 1179 (Fla. 4th DCA 1981) (reversing and remanding case to the trial court for the purpose of "entering a final judgment awarding the wife exclusive occupancy of the marital domicile until the youngest of the two children in her custody attains majority or otherwise becomes emancipated"); see also Robinson v. Robinson, 340 So.2d 935, 936 (Fla. 4th DCA 1976)("The trial court granted to appellee-wife the possession and occupancy of the marital home until the youngest child of the parties is eighteen years of age. Such an award is proper because it is in the nature of maintenance as an incident of child custody.").

In this case, the trial court deviated from "a generally accepted principle of the law of divorce" by forcing the minor child's relocation at age seventeen during the summer before her senior year of high school, rather than when she reaches majority. Moreover, the trial court failed to provide any findings to justify or otherwise explain how this requirement would be in the best interest of the child. Zeller, 396 So.2d at 1179. Instead, the Final Judgment simply states:

9. By agreement, the Husband is and shall remain the sole owner of the home.... However, the Wife shall be entitled to the exclusive use and possession of home until the 17th birthday of the minor child, ..., at which time the Husband shall become entitled to the exclusive use and possession of said residence and the Wife and minor child shall thereupon vacate same.

The former husband claims the parties agreed the former wife and minor child would vacate the home on the child's seventeenth birthday and, thus, her "claims of forcing the child at age seventeen out of the house are totally imaginary." Such argument is fundamentally inadequate because, as explained above, "a court is not bound by any agreement between the parents." Lane, 599 So.2d at 219.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

AMY CARLSON v. VIKTOR FRENGUT
District Court of Appeal of Florida, 2022
HEATHER SEITH v. RICHARD SEITH
District Court of Appeal of Florida, 2022
LUCIO APONTE v. MARIA H. WOOD
District Court of Appeal of Florida, 2020
DANA CAPPOLA v. PAUL CAPPOLA
District Court of Appeal of Florida, 2019
JEFFREY L. LIGHTSEY v. ANGELICA M. DAVIS
267 So. 3d 12 (District Court of Appeal of Florida, 2019)
TIMOTHY RICHARD FOX v. PAMELA SUE FOX
262 So. 3d 789 (District Court of Appeal of Florida, 2018)
Franco v. Thomas
251 So. 3d 325 (District Court of Appeal of Florida, 2018)
Robert N. Badgley, Jr. v. Maria Belen Sanchez
165 So. 3d 742 (District Court of Appeal of Florida, 2015)
Hoff v. Hoff
100 So. 3d 1164 (District Court of Appeal of Florida, 2012)
Forest-Kohl v. Kohl
126 So. 3d 1094 (District Court of Appeal of Florida, 2012)
Lule v. Lule
60 So. 3d 567 (District Court of Appeal of Florida, 2011)
Roth v. Cortina
59 So. 3d 163 (District Court of Appeal of Florida, 2011)
Mondello v. Torres
47 So. 3d 389 (District Court of Appeal of Florida, 2010)
Lefler v. Lefler
68 So. 3d 256 (District Court of Appeal of Florida, 2010)
Todd v. Guillaume-Todd
972 So. 2d 1003 (District Court of Appeal of Florida, 2008)
Esaw v. Esaw
965 So. 2d 1261 (District Court of Appeal of Florida, 2007)
Wynn Drywall, Inc. v. AEQUICAP PROGRAM
953 So. 2d 28 (District Court of Appeal of Florida, 2007)
Morris v. Morris
932 So. 2d 1007 (Supreme Court of Florida, 2006)
Delgado v. Delgado
920 So. 2d 661 (District Court of Appeal of Florida, 2005)
Reed v. Reed
914 So. 2d 26 (District Court of Appeal of Florida, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
902 So. 2d 947, 2005 WL 1335241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dorsett-v-dorsett-fladistctapp-2005.