CALDWELL v. CALDWELL

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Docket Number

No. 80-696.

Attorney(S)

Henry J. Martocci, Cocoa, for appellant. Hubert C. Normile, Jr., of Storms, Krasny, Normile, Dettmer Gillin, P.A., Melbourne, for appellee.

Judges

FRANK D. UPCHURCH, Jr., Judge.

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Smart Summary

Factual and Procedural Background

This appeal arises from a judgment of dissolution of marriage between Henry James Caldwell (appellant/husband) and Judy Caldwell (appellee/wife). The appellant’s trial counsel initially sought a special equity in the marital residence but later amended the claim to assert sole ownership based on the alleged invalidity of a quit claim deed conveying interest to the wife. No trial transcript was made; instead, the court relied on an "Approved Statement of Proceedings." The trial court decided to dissolve the marriage and establish child support while deferring the issue of property ownership and the validity of the deed to a separate proceeding intended to remove any cloud on the title. The appellant also challenged the trial court’s award of exclusive possession of the marital residence to the wife as an element of child support, particularly questioning whether such possession should continue if the wife remarried.

Legal Issues Presented

Whether the trial court erred by not considering or ruling on the appellant’s claim of a special equity in the marital residence.
Whether the trial court properly awarded the wife exclusive use and possession of the marital residence as an element of child support, including whether such award should terminate upon the wife’s remarriage.

Arguments of the Parties

Appellant's Arguments

The court should have considered and ruled on the husband’s claim of a special equity in the marital residence.
The court lacked authority to grant the wife exclusive possession of the marital residence as an element of child support if she remarried.

Appellee's Arguments

The award of exclusive possession was properly labeled as child support, which is not affected by the remarriage of the custodial parent.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ball v. Ball, 335 So.2d 5 (Fla. 1976)	Bare allegation of ownership before marriage may support claim of special equity.	The court noted that nothing in the record showed a request to rule on special equity, and the claim was abandoned in the amended answer; thus, no error in not ruling on it.
Firestone v. Firestone, 263 So.2d 223 (Fla. 1972)	Validity of property deeds may be considered in dissolution proceedings.	The court acknowledged it could have ruled on the deed validity but deferred the issue to a separate action without objection.
Duncan v. Duncan, 379 So.2d 949 (Fla. 1980)	Rejected inflexible rule that exclusive possession must end when children reach majority; did not address termination upon remarriage.	The court relied on this case to analyze the authority to grant exclusive possession and noted the issue of remarriage was unresolved.
McMaster v. McMaster, 379 So.2d 189 (Fla. 4th DCA 1980)	Custodial parent entitled to exclusive possession until children reach majority or remarriage.	Referenced as part of the prior rule before Duncan.
Bailey v. Bailey, 361 So.2d 204 (Fla. 1st DCA 1978)	Same as above regarding exclusive possession.	Referenced as part of the prior rule before Duncan.
Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976)	Same as above regarding exclusive possession.	Referenced as part of the prior rule before Duncan.
Hendricks v. Hendricks, 312 So.2d 792 (Fla. 3d DCA 1975)	Same as above regarding exclusive possession.	Referenced as part of the prior rule before Duncan.
Abella-Fernandez v. Abella, 393 So.2d 40 (Fla. 3d DCA 1981)	Cases post-Duncan continuing to require termination of exclusive possession upon remarriage.	Used to support the court’s view that exclusive possession should end if the custodial parent remarries.
Dykes v. Dykes, 389 So.2d 334 (Fla. 1st DCA 1980)	Same as above regarding termination upon remarriage.	Used to support the court’s view on termination of exclusive possession upon remarriage.

Court's Reasoning and Analysis

The court first addressed the claim of special equity. It found no error in the trial court’s failure to consider or rule on special equity because the appellant’s amended pleadings abandoned that claim, and there was no record showing it was ever litigated. Regarding the validity of the quit claim deed, the court acknowledged the trial court could have ruled on it within the dissolution proceedings but chose to defer that issue to a separate action to clear title, which was unobjected to and currently underway.

On the issue of exclusive possession of the marital residence as an element of child support, the court reviewed Florida precedent. Prior to Duncan v. Duncan, exclusive possession was granted until children reached majority or the custodial parent remarried. Duncan rejected the strict rule ending possession at majority but did not address remarriage. Subsequent cases continued to require termination upon remarriage. The court reasoned that allowing exclusive possession to continue after the wife’s remarriage would effectively support the new spouse at the appellant’s expense, which was improper. Therefore, the court concluded that exclusive possession should terminate upon the custodial parent’s remarriage, justifying a modification of child support obligations and protecting the property rights of the noncustodial spouse.

Holding and Implications

The court reversed in part and remanded the case. Specifically, it reversed the portion of the final judgment granting the wife exclusive possession of the marital residence beyond her remarriage and remanded to the trial court to amend the judgment accordingly. The court upheld the trial court’s approach of deferring the property ownership and deed validity issues to a separate proceeding. This decision directly affects the parties by limiting the duration of exclusive possession as child support to the period before the custodial parent’s remarriage. No new broad precedent was established beyond clarifying that exclusive possession should terminate upon remarriage.

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IN RE THE MARRIAGE OF HENRY JAMES CALDWELL, APPELLANT, v. JUDY CALDWELL, APPELLEE.

FRANK D. UPCHURCH, Jr., Judge.

Appellant/husband appeals from a judgment of dissolution of marriage. Trial counsel for appellant (who was not appellate counsel) filed an answer asking the court to grant the husband a special equity in the marital residence. Counsel later amended the answer dropping all reference to the special equity and substituting therefor a claim that the husband was the sole owner of the property. The claim of sole ownership was based on the alleged nullity of the quit claim deed conveying an interest to the wife. No transcript of the trial was made but the court executed an "Approved Statement of Proceedings" pursuant to Florida Rule of Appellate Procedure 9.200(b)(3). According to that statement, the court had determined that:

[I]ssues concerning the validity of a quit claim deed between appellant as grantor and appellee as grantee was a classic case to remove the cloud on the title to property and that the trial court should go ahead and dissolve the marriage and establish the amount of child support leaving all questions relating to the record title owner or the rights of the parties to the ownership of the former marital dwelling to be litigated after the conclusion of the dissolution of marriage action in a separate action instituted for the purpose of removing a cloud on the title to the former marital dwelling.

Appellant contends that the court should have considered the question of a special equity. Without a record, however, we cannot determine what was proved or considered. While under Ball v. Ball, 335 So.2d 5 (Fla. 1976), the bare allegation that the husband was the owner of the property before the marriage may support a claim for special equity, nothing in the pleadings or record here shows that the court was ever asked to rule on a special equity. An examination of the answer and amended answer reflect an abandonment of the claim of a special equity. Under such circumstances, it clearly was not error for the court to fail to grant or deny a special equity. As to the question of the validity of the deed, the statement of proceedings clearly reflects that the court did not rule on that issue and, while the court could have considered that question in the dissolution proceedings, see Firestone v. Firestone, 263 So.2d 223 (Fla. 1972), no objection is noted to having a separate determination of the validity of the deed.

At oral argument counsel for the parties announced that such determination was currently underway.

The second point raised by appellant is whether the trial court erred in providing the wife, the custodial parent, with the exclusive use of the marital residence as an element of child support.

The language of the final judgment to which this question is addressed, is:

4. As an element of child support, Petitioner shall continue to have the exclusive use and possession of the marital residence located as 2320 Reef Avenue, Indialantic, Florida, for herself and the minor child until further order of the court, provided, however, that no person of the opposite sex not related by blood or marriage shall occupy the said premises.

Appellant contends that the court did not have authority to grant to the wife the right to exclusive possession of the residence in the event she remarries.

Prior to Duncan v. Duncan, 379 So.2d 949 (Fla. 1980), the Florida courts held that the custodial parent was entitled to the exclusive use and possession of the marital home until the parties' children reached majority or until his or her remarriage. See, e.g., McMaster v. McMaster, 379 So.2d 189 (Fla. 4th DCA 1980); Bailey v. Bailey, 361 So.2d 204, 205 (Fla. 1st DCA 1978); Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976); Hendricks v. Hendricks, 312 So.2d 792 (Fla. 3d DCA 1975). Duncan rejected the asserted "inflexible rule" that exclusive possession must terminate when all children born of the marriage have attained the age of majority. The court, however, did not address the issue whether the award must terminate upon remarriage of the spouse. Cases decided after Duncan have continued to impose this requirement. See, e.g., Abella-Fernandez v. Abella, 393 So.2d 40 (Fla. 3d DCA 1981); Dykes v. Dykes, 389 So.2d 334 (Fla. 1st DCA 1980). The wife argues that the award was labeled "child support" and that child support is unaffected by remarriage of the custodial parent.

The award of exclusive possession of the marital home also contributes to the support of the wife by providing her with rent-free housing. Should the wife remarry and her new husband move into the home with her, appellant would be then contributing to the support of the new husband by providing him with rent-free housing. While we have found no cases on point, we believe the better rule to be that exclusive possession should terminate upon the wife's remarriage. While this would be a change in circumstances justifying a reexamination of the child support obligation, we hold that one spouse cannot be deprived of his or her right to possession of jointly held property awarded to the other spouse as an incident of child support upon that parent's remarriage.

We reverse paragraph four of the final judgment insofar as it would grant exclusive possession of the marital residence to the wife after her remarriage, and we remand to the trial court to amend the judgment in this respect.

REVERSED IN PART and REMANDED.

COBB and SHARP, JJ., concur.