Hernandez v. Hernandez

645 So. 2d 171, 1994 WL 656200
District Court of Appeal of Florida·Decided November 23, 1994·No. 92-2721·Published·Cited by 13 cases

Opinion

645 So.2d 171 (1994)

Miriam HERNANDEZ, Appellant,
v.
Walfrido HERNANDEZ, Appellee.

No. 92-2721.

District Court of Appeal of Florida, Third District.

November 23, 1994.

*172 Elser, Green & Hodor and Cynthia L. Greene, Miami, for appellant.

Albert P. Rosillo, Miami, for appellee.

Before SCHWARTZ, C.J., and COPE and GERSTEN, JJ.

COPE, Judge.

Miriam Hernandez appeals a post-dissolution order of partition. We affirm in part and reverse in part.

Miriam Hernandez and Walfrido Hernandez were divorced in 1979. The final judgment of dissolution of marriage incorporated the parties' property settlement agreement. The provisions relating to the marital residence were as follows:

5. The wife and children shall continue to live in the marital residence, and during such time the wife shall be entirely responsible for all mortgage, utility and repair payments. If and when said home is sold, the parties shall share the proceeds of said sale equally after deduction of all costs, expenses, commissions and legal fees of sale.
6. Notwithstanding the foregoing paragraph, however, the husband shall be responsible for and make all payments on the second mortgage on the home, the proceeds for which were used in the husband's business. In the event the home is sold prior to the payment and satisfaction of said mortgage, the balance remaining thereon shall be deducted from the husband's share of the proceeds.

In 1992 the parties sought partition. After an evidentiary hearing, the trial court entered a partition order directing that the property be sold, and specifying how the proceeds of sale would be divided.[1]

The former wife has appealed, asserting that the trial court erred in several respects in the computation of the credits to be allowed. We consider these claims in turn.

I.

Pursuant to the property settlement agreement, the former wife made the payments on the first mortgage, including principal, interest, taxes, and insurance. She requested credit for one-half of these amounts. The trial court order denied credit, and the former wife contends that this ruling was erroneous.

*173 In denying credit, the trial court evidently relied on this court's decision in Janer v. Janer, 532 So.2d 59 (Fla. 3d DCA 1988). In that case, as in this one, a property settlement agreement required the wife to make mortgage payments on the property. "The agreement was silent as to whether or not the wife was to receive a credit for mortgage payments, etc. at time of sale." Id. The agreement provided that the proceeds of sale would be divided equally. This court concluded that where the property settlement agreement is silent on the question of credits at the time of sale, none would be granted. Id.[2]

Subsequently, the Florida Supreme Court decided Kelly v. Kelly, 583 So.2d 667 (Fla. 1991). In our view, the decision in Janer does not survive Kelly. Kelly states:

The rule applicable to tenancies in common is that all owners contribute equally to the maintenance of the ownership interest in the property. Potter v. Garrett, 52 So.2d 115 (Fla. 1951). After divorce, the parties become tenants in common and, as such, have equal responsibility in making all payments necessary to maintain their ownership of the property. On this issue, therefore, we approve Iodice [v. Scoville], 460 So.2d 576 (Fla. 4th DCA 1984),] and Brandt v. Brandt, 525 So.2d 1017 (Fla. 4th DCA 1988).

583 So.2d at 668.

The Brandt decision held, inter alia, that it makes no difference whether the provision for exclusive occupancy and payment of expenses is contained in a final judgment or in a property settlement agreement. 525 So.2d at 1020. Brandt elaborates on the responsibility for payment by cotenants as follows:

`As co-tenants each is ultimately liable for his or her proportionate share of the obligations of the property, such as taxes and mortgages. Generally, if one co-tenant pays an obligation for which all are liable, he is entitled to have the other co-tenant pay his proportionate share... . But where the final judgment of dissolution of marriage awards one co-tenant the exclusive possession of the marital domicile and directs that co-tenant to pay all or some of the obligations of the property such as taxes, liens and repairs, the right of the co-tenant in possession to reimbursement from the other co-tenant is postponed until such time as the property is partitioned or otherwise sold. However, upon partition or other sale, the tenant paying those obligations of the property is entitled to credit from the proceeds of the sale for the other co-tenant's proportionate share of those expenses. .. . In a recent dissolution of marriage case, ... this court held that the trial court erred in not giving the wife credit at the time of sale of the jointly owned marital domicile for payments she made for obligations of the property during the time of her possession.'

Brandt v. Brandt, 525 So.2d at 1019-20 (Fla. 4th DCA 1988) (citations omitted).

Brandt reasons that where the property settlement agreement imposes the obligation to "pay" or "be responsible for" specified expenses, such language imposes only the obligation to initially make such payments and does not determine the ultimate liability at the time the property is sold. Id. The parties are free, of course, to enter into a valid contract which would allocate the ultimate liability in some other way. Id. However, "where there is an agreement but it is silent as to the ultimate liability for such expenses, and no evidence is presented that the non-paying tenant gave consideration to be relieved of his legal obligation to pay one-half of such expenses, ... a right of reimbursement in the paying tenant is established by operation of law." Id. at 1020.

We conclude that Janer is no longer good law. This follows from Kelly's explicit reliance on Brandt, and from the underlying logic of both. The essential reasoning is that a provision for post-dissolution exclusive occupancy of a residence must be read in tandem with the law of cotenancy. Janer is inconsistent with that approach. See also Chaney v. Chaney, 619 So.2d 440, 441 (Fla. 2d DCA 1993) (applying Kelly and Brandt to a property settlement agreement).

*174 In this case the former wife made all of the mortgage payments. In essence she paid her own one-half share and also her former husband's one-half share. Under Kelly and Brandt, she is entitled to credit for the one-half share she advanced on the former husband's behalf.[3] On remand the order shall be amended to provide for such credit.

II.

The former wife made a claim for credit for one-half of the amounts she expended for repairs. Here also, the trial court denied credit, apparently in reliance on Janer. As noted, Janer is no longer good law.

Expenditures which preserve the property are a legitimate item for credit at the time of partition sale. Such expenditures include needed repair, maintenance, and replacement. Commentators generally refer to such expenditures under the category of repair. See 2 American Law of Property § 6.18 (A. James Casner, ed., 1952); Cornelius J. Moynihan, Introduction to the Law of Real Property 217 (2d ed. 1988). However, terminology is not uniform.

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Hernandez v. Hernandez, 645 So. 2d 171, 1994 WL 656200 (Fla. Ct. App. 1994).

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