Mummaw v. Mummaw

District Court of Appeal of Florida

Mummaw v. Mummaw

532 So. 2d 737, 13 Fla. L. Weekly 2240, 1988 Fla. App. LEXIS 4383, 1988 WL 99519

CourtDistrict Court of Appeal of Florida

DecidedSeptember 29, 1988

DocketNo. 88-661

StatusPublished

Cited by1 cases

This text of 532 So. 2d 737 (Mummaw v. Mummaw) 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.

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Mummaw v. Mummaw, 532 So. 2d 737, 13 Fla. L. Weekly 2240, 1988 Fla. App. LEXIS 4383, 1988 WL 99519 (Fla. Ct. App. 1988).

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MILLS, Judge.

In this appeal and cross-appeal from a final judgment in a dissolution of marriage proceeding, the former husband challenges the alimony and child support awards, and also the terms of the final judgment concerning eventual sale of the marital home. The former wife challenges a provision requiring sale of the marital home if she cohabits there with an unrelated male. We affirm in part and reverse in part.

We find no error or abuse of discretion in the trial court’s award of alimony and child support. We do, however, agree with the former husband that the trial court erred in providing that, following the period of the wife’s exclusive use and possession, the marital home shall be sold and the proceeds divided, without also providing that the former husband is entitled to a credit for funds expended by him, in excess of his obligation as a cotenant, for the mortgage and maintenance of the marital home during the period of the former wife’s exclusive use and possession. Gudinas v. Gudinas, 471 So.2d 210 (Fla. 1st DCA 1985); Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976). Because the former husband’s obligation, with respect to the expenses of the marital home, was denominated in the final judgment as child support, we note, as in Gudinas and Jones, that the trial court may revisit the issue of child support upon remand.

Finally, as urged on cross appeal, we strike the provision requiring sale of the marital home if the wife “cohabits with an unrelated male.” Such a provision is only sustainable if it is necessary to safeguard the children’s interests. Danoff v. Danoff, 501 So.2d 1361 (Fla. 4th DCA 1987). There is no evidence of such necessity in the record.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

SMITH, C.J., concurs. NIMMONS, J., concurs with written opinion.

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MILLS, Judge.

In this appeal and cross-appeal from a final judgment in a dissolution of marriage proceeding, the former husband challenges the alimony and child support awards, and also the terms of the final judgment concerning eventual sale of the marital home. The former wife challenges a provision requiring sale of the marital home if she cohabits there with an unrelated male. We affirm in part and reverse in part.

We find no error or abuse of discretion in the trial court’s award of alimony and child support. We do, however, agree with the former husband that the trial court erred in providing that, following the period of the wife’s exclusive use and possession, the marital home shall be sold and the proceeds divided, without also providing that the former husband is entitled to a credit for funds expended by him, in excess of his obligation as a cotenant, for the mortgage and maintenance of the marital home during the period of the former wife’s exclusive use and possession. Gudinas v. Gudinas, 471 So.2d 210 (Fla. 1st DCA 1985); Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976). Because the former husband’s obligation, with respect to the expenses of the marital home, was denominated in the final judgment as child support, we note, as in Gudinas and Jones, that the trial court may revisit the issue of child support upon remand.

Finally, as urged on cross appeal, we strike the provision requiring sale of the marital home if the wife “cohabits with an unrelated male.” Such a provision is only sustainable if it is necessary to safeguard the children’s interests. Danoff v. Danoff, 501 So.2d 1361 (Fla. 4th DCA 1987). There is no evidence of such necessity in the record.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

SMITH, C.J., concurs. NIMMONS, J., concurs with written opinion.

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532 So. 2d 737, 13 Fla. L. Weekly 2240, 1988 Fla. App. LEXIS 4383, 1988 WL 99519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mummaw-v-mummaw-fladistctapp-1988.

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