ABSTRACT: Under 61.075(1), Florida Statutes, the Court can award a spouse with majority timesharing exclusive use and possession of a marital residence until the minor child reaches the age of majority or until the spouse remarries. The Court justifies this award as an way of avoiding further disruption to a minor child’s life. Florida case law suggests this award is the norm unless “special circumstances” exist to make it inequitable.. Special Circumstances include: relative financial positions of parties, duration of residence, other assets available, and earning capacity of the parties. To sustain the award, the parties must be able to maintain the home living separately and the non-occupying spouse must be financially able to forego the economic benefit of distributing the asset immediately. Some case law suggests a nonmarital home can be subject to exclusive use and possession.
Relevant Statute: §61.075(1), Florida Statues
§ 61.075. Equitable Distribution of Marital Assets and Liabilities
(1) In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, or in a proceeding for disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets, the court shall set apart to each spouse that spouse's nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:
(1)(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
What’s the general rule for awarding exclusive use and possession of marital residence to a party?
A trial court may award the primary residential [majority timesharing] parent exclusive use and possession of the marital residence until the youngest child reaches majority or the primary residential parent remarries, unless there are special circumstances. Martin v. Martin, 959 So.2d 803 (1st DCA 2007).
What’s the rationale behind this type of award?
Relevant Statute: §61.075(1), Florida Statues
§ 61.075. Equitable Distribution of Marital Assets and Liabilities
(1) In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, or in a proceeding for disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets, the court shall set apart to each spouse that spouse's nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:
(1)(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
What’s the general rule for awarding exclusive use and possession of marital residence to a party?
A trial court may award the primary residential [majority timesharing] parent exclusive use and possession of the marital residence until the youngest child reaches majority or the primary residential parent remarries, unless there are special circumstances. Martin v. Martin, 959 So.2d 803 (1st DCA 2007).
What’s the rationale behind this type of award?
"[T]he breakup of their parents' marriage is . . . a severe trauma to young children; this additional physical and psychological dislocation [from the family home] should not be imposed upon them unless there is a very good reason indeed for doing so." Pino v. Pino, 418 So.2d 311, 312 (3d DCA 1982).
What special circumstances justify partition of the home rather than exclusive use and possession?
The parties' relative financial positions along with other considerations may constitute special circumstances. Martin.
What relative financial positions deter exclusive use and possession?
The non-occupying spouse’s financial position must be bad enough that he/she requires an immediate distribution of the home’s assets. So, if the parties are unable to maintain the home financially living separately, then the court should order partition. Example: In Marshall v. Marshall, the parties made similar incomes, had very little liquid assets, and had no children. Without distribution of the home, the non-occupying Husband would have been reduced from “modest economic status…to relative impoverishment.” Marshall v. Marshall, 953 So. 2d 23, 26 (5th DCA 2007).
What other considerations justify partition?
1. Short duration of the parties [having] resided in the marital residence,
2.Lack of other significant marital assets, and
3.The large differential in relative earning power together constitute special circumstances. See Martin. (i.e. the occupying spouse is much wealthier than the non-occupier).
In Martin, the parties resided in the home for less than a year, the house had significant equity and was the main asset, and the wife [majority timesharing parent] made 2.5 times more income than the husband.
Can the Court order exclusive use and possession of a nonmarital home?
Probably. In Cabrera v. Cabrera, 484 So.2d 1338 (3rd DCA 1986), the Court reversed the trial court’s order requiring the former wife and child remove themselves from the nonmarital home. The home was purchased prior to the marriage by the Husband and the parties had only lived there for two years. The Court looked to the relative financial positions of the parties in rationalizing this dispossession. Since the Husband made a lot more money than the unemployed wife, it stated: “[the Husband] is financially able to provide adequate housing for his child without inordinate sacrifice on his part.” The Court asserted the principle that the award of exclusive possession of property is directly connected to the obligation to support. This outcome seems suspect if the home should never have been subject to equitable distribution in the first place.
Can a Court award a non-occupying spouse a credit for the rental value of the home?
Yes. Example 1: Rental value during an injunction. Divorce court properly awarded a former husband credit for half of the marital home's rental value for the period when the former wife had exclusive possession of it pursuant to a final judgment for protection of domestic violence issued under Fla. Stat. § 741.30(1)(c), as the domestic violence order did not preclude the divorce court from considering the home's rental value. Wolf v. Wolf, 979 So. 2d 1123, (2nd DCA 2008).
Example 2: Trial court erred in ruling that a former husband was not entitled to half of the rental value of a marital residence during a former wife's exclusive occupancy after the parties' child became an adult because the final judgment dissolving the parties' marriage gave the wife exclusive possession only during the child's minority. When the child reached the age of majority the wife's right to exclusive possession terminated; the husband was entitled to rental credit to offset the wife's claim for contribution. Weiner v. Weiner, 37 So. 3d 395, (4th DCA 2010).
Attached Case law:
1. Martin v. Martin, 959 So.2d 803 (1st DCA 2007). Special circumstances justifying no exclusive use and possession of home for majority timesharing parent.
2. Cabrera v. Cabrera, 484 So.2d 1338 (3rd DCA 1986). Exclusive use and possession of a nonmarital residence appropriate when occupying, majority timesharing parent has a definite need, and the non-occupying spouse is financially able to provide home without sacrifice.
WILLIAM SCOTT MARTIN, Husband, Appellant, v. RHONDA J. MARTIN, Wife, Appellee.
CASE NO. 1D06-4402
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
959 So. 2d 803; 2007 Fla. App. LEXIS 9955; 32 Fla. L. Weekly D 1577
June 27, 2007, Opinion Filed
SUBSEQUENT HISTORY: Released for Publication July 13, 2007.
PRIOR HISTORY: [**1]
An appeal from the Circuit Court for Santa Rosa County. Robert Hilliard, Judge.
DISPOSITION: AFFIRMED in part, REVERSED in part, and REMANDED.
COUNSEL: Thomas C. Staples for Staples, Ellis, & Associates; Louis K. Rosenbloum for Louis K. Rosenbloum, P.A., Pensacola, for Appellant.
James L. Chase for Chase, Quinnell, & Jackson, P.A., for Appellee.
JUDGES: HAWKES, J. PADOVANO and POLSTON, JJ., CONCUR.
OPINION BY: HAWKES
OPINION
[*804] HAWKES, J.
William Scott Martin appeals the final judgment dissolving his marriage to Rhonda J. Martin. He contends the trial court abused its discretion in three ways: first, by not awarding him permanent periodic alimony when his former wife earns approximately two and one-half times more income than he does; second, by not partitioning the marital residence despite the special circumstances of this case; and third, by summarily denying his motion for attorney's fees and costs despite the substantial income disparity between the parties. We AFFIRM the denial of alimony, REVERSE as to the trial court's failure to partition the marital residence and award attorney's fees and costs, and REMAND for further proceedings.
Facts
The parties married in August 1992 and separated in December 2004. The former wife filed for dissolution [**2] in February 2005. At the time of their separation, the parties had two children under the age of ten, and had resided in the newly built marital residence for less than a year.
The marital residence was encumbered by a $ 229,215.00 mortgage, and had a market value of $ 408,000.00. The former wife had a bachelor's degree in accounting, worked as a CPA, and, including bonuses, earned approximately $ 125,000.00 in gross annual income. The former husband had an associate of arts degree, worked as a factory shift worker, and, including overtime, earned approximately $ 50,000.00 in gross annual income.
In July 2006, the trial court entered a final judgment, which denied the former husband's request for permanent periodic alimony; ordered equitable distribution of marital assets, including the marital home, but denied partition since the former wife was named primary residential parent for the children; and denied the former husband's request for attorney's fees and suit costs. The home was to be sold upon the youngest child attaining majority, or the former wife's remarriage.
[*805] Partition of Marital Residence
Distribution of marital assets and liabilities, including the marital residence, begins [**3] with the premise of equal distribution unless there is justification for unequal distribution under the statutory factors. § 61.075(1), Fla. Stat. (2005). As a general rule, a trial court may award the primary residential parent exclusive use and possession of the marital residence until the youngest child reaches majority or the primary residential parent remarries, unless there are special circumstances. See Martinez v. Martinez, 573 So. 2d 37, 43 (Fla. 1st DCA 1990) rev. denied 581 So. 2d 1309 (Fla. 1991). The parties' relative financial positions along with other considerations may constitute special circumstances. See Dehler v. Dehler, 648 So. 2d 819, 820 (Fla. 4th DCA 1995).
Here, the short duration the parties resided in the marital residence, the lack of other significant marital assets, and the large differential in relative earning power together constitute special circumstances. Based upon these special circumstances, the trial court abused its discretion by refusing to order the partition of the marital residence. On remand, the trial court should order partition, unless the parties reach alternative arrangements. 1
1 Nothing in this opinion should be construed to prohibit [**4] one party from purchasing the marital residence from the other party in lieu of partition.
Attorney's Fees and Costs
Pursuant to section 61.16, Florida Statutes, a trial court may order one party to pay an attorney's fee, suit money, and costs for the other party. § 61.16, Fla. Stat. (2005). The parties' financial resources are the primary factor to consider when determining whether to award fees. Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997). The purpose of section 61.16 is to level the playing field in family-law proceedings, ensuring both parties have an equal ability to obtain competent legal counsel. Glasgow v. Wolfe, 873 So. 2d 483, 484 (Fla. 1st DCA 2004). "This provision expressly requires the court to make findings regarding the parties' respective financial needs and abilities to pay." Id. at 484-85 (quoting Sumlar v. Sumlar, 827 So. 2d 1079, 1084 (Fla. 1st DCA 2002)).
In the instant case, the facts are undisputed. The former wife makes substantially more than the former husband. The former husband received a gift of approximately $ 7,500.00 towards his attorney's fees and suit costs from his father. He placed the remainder of his litigation costs on a credit card. Additional [**5] "gifts" from his parents amounted to a $ 9,000.00 interest-free loan, a reduced rental rate on a property owned by his parents in which he was living during the pendency of the dissolution proceedings, a used car titled in his name, and use of a family owned boat. Where the parties' income disparity is substantial, a trial court abuses its discretion by denying a request for attorney's fees and costs. See Jacobs v. Jacobs, 585 So. 2d 404, 405 (Fla. 1st DCA 1991); Kelly v. Kelly, 491 So. 2d 330 (Fla. 1st DCA 1986) (finding abuse of discretion in failing to award attorney's fee where wife had substantially smaller income than husband, the majority of her assets would not become liquid until marital residence was sold, and without liquid assets she would, for the short run, be in a substantially worse financial position than her husband); see also Meighen v. Meighen, 813 So. 2d 173, 177 (Fla. 2d DCA 2002) (holding the granting of partial attorney's fees and costs may be an abuse of discretion where parties' income disparity is substantial).
Earning two and half-times more than one's former spouse constitutes a substantial income disparity. Christ v. Christ, 854 So. 2d 244, 248 [*806] (Fla. 1st DCA 2003); [**6] Hyatt v. Hyatt, 672 So. 2d 74, 76 (Fla. 1st DCA 1996) (holding trial court's denial of fees erroneous due to substantial disparity in parties' income).
Occasional gifts of temporary support given on an irregular basis may not be imputed as income under section 61.16, Florida Statutes. See Shiveley v. Shiveley, 635 So. 2d 1021, 1022-23 (Fla. 1st DCA 1994) (holding past gifts from spouse's parents are not imputed as income); Meighen v. Meighen, 813 So. 2d 173, 176 (Fla. 2d DCA 2002) (holding temporary parental assistance, such as living rent-free in a home owned by a parent during the pendency of the dissolution proceedings does not provide a basis for imputing income). Shiveley reasoned that "[g]ifts which have not yet been received are purely speculative in nature, mere expectancies, and as such are not properly included in the calculation of income for purposes of determining the need for, or the ability to provide, support." Shiveley, 635 So. 2d at 1022-23.
In reviewing the final judgment, it appears the trial court considered parental "gifts" and imputed them as income or "financial resources" when denying former husband attorney's fees and costs. If such was the case, the trial court [**7] erred as a matter of law. Id. Since there were no findings made, we cannot determine the rationale for the trial court's denial of attorney's fees and costs.
AFFIRMED in part, REVERSED in part, and REMANDED. On remand, the court may receive additional evidence if necessary.
PADOVANO and POLSTON, JJ., CONCUR.
No. 85-1024
Court of Appeal of Florida, Third District
484 So. 2d 1338; 1986 Fla. App. LEXIS 6847; 11 Fla. L. Weekly 621
March 11, 1986
SUBSEQUENT HISTORY: [**1] Rehearing Denied April 2, 1986.
PRIOR HISTORY: An Appeal from the Circuit Court for Dade County, Edward N. Moore, Judge.
COUNSEL: Pardo & Pardo and Joseph Pardo, for Appellant.
Horton, Perse & Ginsberg and Mallory Horton, for Appellee.
JUDGES: Barkdull, Baskin and Jorgenson, JJ.
OPINION BY: PER CURIAM
OPINION
[*1339] REVISED OPINION
In its final judgment of dissolution, the trial court granted the wife primary custody of the parties' two-year-old child, ordered the wife and child to vacate the marital residence, and required the husband to pay $7,500 in lump sum alimony and $100 per week in child support. In this appeal, the wife challenges the trial court's failure to award her exclusive occupancy of the marital home until she remarries or the child attains majority. Agreeing that the trial court abused its discretion, we reverse a portion of the final judgment.
Cases dealing with the issue of whether the custodial parent should be awarded exclusive use and possession of the marital home until the children reach majority or the parent remarries have almost without exception answered the question affirmatively. Cato v. Cato, 432 So.2d 768 (Fla. 2d DCA 1983); Cutler v. Cutler, 421 [**2] So.2d 585 (Fla. 3d DCA 1982); Pino v. Pino, 418 So.2d 311 (Fla. 3d DCA 1982); Bullard v. Bullard, 413 So.2d 1238 (Fla. 3d DCA 1982); Florence v. Florence, 400 So.2d 1018 (Fla. 1st DCA 1981); Zeller v. Zeller, 396 So.2d 1177 (Fla. 4th DCA 1981); Farrington v. Farrington, 390 So.2d 461 (Fla. 3d DCA 1980), review dismissed, 399 So.2d 1142 (Fla. 1981); Kemmerer v. Kemmerer, 386 So.2d 1248 (Fla. 3d DCA 1980), review denied, 392 So.2d 1376 (Fla. 1981); Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla. 1980); Dolch v. Dolch, 368 So.2d 618 (Fla. 2d DCA 1979); Bailey v. Bailey, 361 So.2d 204 (Fla. 1st DCA 1978); Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977); Reisman v. Reisman, 314 So.2d 783 (Fla. 3d DCA 1975), cert. denied, 336 So. 2d 107 (Fla. 1976). Cf. Kuvin v. Kuvin, 442 So.2d 203 (Fla. 1983) (marital home not awarded to custodial parent of minor children where $20,000 awarded wife from husband's share of proceeds of ordered sale of house plus her share of proceeds would permit her to find suitable housing for herself and children); Schein v. Schein, 448 So.2d 16 (Fla. 3d DCA 1984) [**3] (absent finding of duty on wife's part to support children, court erred in awarding husband, who had custody of children, rent-free exclusive possession of marital home).
[*1340] Of particular interest is the decision in Florence. There, the first district court of appeal addressed this issue in a case involving facts similar to those before us. The Cabreras resided, for the entire two years of their marriage, in a house purchased by the husband prior to the marriage. In Florence, where the husband had purchased the marital home prior to the three-year marriage, the first district granted the wife exclusive use and possession of the marital home until she remarried or the child reached eighteen or otherwise became emancipated. Because the home remained titled in the husband's name, the husband remained responsible for the mortgage payments. As did the courts in the other cited cases, the Florence court affirmed the principle that the award of exclusive possession of property is directly connected to the obligation to support. Bullard; Farrington; Duncan v. Duncan, 379 So.2d 949 (Fla. 1980).
A review of the parties' finances discloses that Mr. Cabrera owns [**4] a controlling interest in a general contracting corporation and has a net worth of approximately $619,000. In addition to the salary he receives from the corporation, he is using corporate funds to buy out his former "partner's" interest at the rate of $4,166.67 per month. Thus, he is financially able to provide adequate housing for his child without inordinate sacrifice on his part. See Singer. Mrs. Cabrera, on the other hand, has remained a housewife and is rearing the child full time. She did not work outside the home during the marriage.
This court previously stated that "the breakup of their parents' marriage is . . . a severe trauma to young children; this additional physical and psychological dislocation [from the family home] should not be imposed upon them unless there is a very good reason indeed for doing so." Pino, 418 So.2d at 312; see Singer. As in Pino, no good reason exists here for removing the wife and child from the marital home. We therefore reverse that portion of the final judgment of dissolution which requires the wife and child to remove themselves from the marital home. We hold that the wife is entitled to exclusive occupancy of the residence [**5] for herself and the child until the wife remarries or the child attains majority, marries or is no longer dependent. Should the wife prefer, she may accept equivalent substitute housing. We find no abuse of discretion in the remainder of the judgment. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).
For these reasons, we affirm in part, reverse in part, and remand for the entry of a judgment consistent with this opinion and for an equitable determination as to which party shall bear the reasonable and necessary expenses associated with the use and upkeep of the marital home. Judge v. Judge, 370 So.2d 833 (Fla. 2d DCA 1979); Fraser v. Fraser, 368 So.2d 97 (Fla. 3d DCA 1979).
Affirmed in part; reversed in part; remanded for further proceedings consistent with this opinion.
The parties' relative financial positions along with other considerations may constitute special circumstances. Martin.
What relative financial positions deter exclusive use and possession?
The non-occupying spouse’s financial position must be bad enough that he/she requires an immediate distribution of the home’s assets. So, if the parties are unable to maintain the home financially living separately, then the court should order partition. Example: In Marshall v. Marshall, the parties made similar incomes, had very little liquid assets, and had no children. Without distribution of the home, the non-occupying Husband would have been reduced from “modest economic status…to relative impoverishment.” Marshall v. Marshall, 953 So. 2d 23, 26 (5th DCA 2007).
What other considerations justify partition?
1. Short duration of the parties [having] resided in the marital residence,
2.Lack of other significant marital assets, and
3.The large differential in relative earning power together constitute special circumstances. See Martin. (i.e. the occupying spouse is much wealthier than the non-occupier).
In Martin, the parties resided in the home for less than a year, the house had significant equity and was the main asset, and the wife [majority timesharing parent] made 2.5 times more income than the husband.
Can the Court order exclusive use and possession of a nonmarital home?
Probably. In Cabrera v. Cabrera, 484 So.2d 1338 (3rd DCA 1986), the Court reversed the trial court’s order requiring the former wife and child remove themselves from the nonmarital home. The home was purchased prior to the marriage by the Husband and the parties had only lived there for two years. The Court looked to the relative financial positions of the parties in rationalizing this dispossession. Since the Husband made a lot more money than the unemployed wife, it stated: “[the Husband] is financially able to provide adequate housing for his child without inordinate sacrifice on his part.” The Court asserted the principle that the award of exclusive possession of property is directly connected to the obligation to support. This outcome seems suspect if the home should never have been subject to equitable distribution in the first place.
Can a Court award a non-occupying spouse a credit for the rental value of the home?
Yes. Example 1: Rental value during an injunction. Divorce court properly awarded a former husband credit for half of the marital home's rental value for the period when the former wife had exclusive possession of it pursuant to a final judgment for protection of domestic violence issued under Fla. Stat. § 741.30(1)(c), as the domestic violence order did not preclude the divorce court from considering the home's rental value. Wolf v. Wolf, 979 So. 2d 1123, (2nd DCA 2008).
Example 2: Trial court erred in ruling that a former husband was not entitled to half of the rental value of a marital residence during a former wife's exclusive occupancy after the parties' child became an adult because the final judgment dissolving the parties' marriage gave the wife exclusive possession only during the child's minority. When the child reached the age of majority the wife's right to exclusive possession terminated; the husband was entitled to rental credit to offset the wife's claim for contribution. Weiner v. Weiner, 37 So. 3d 395, (4th DCA 2010).
Attached Case law:
1. Martin v. Martin, 959 So.2d 803 (1st DCA 2007). Special circumstances justifying no exclusive use and possession of home for majority timesharing parent.
2. Cabrera v. Cabrera, 484 So.2d 1338 (3rd DCA 1986). Exclusive use and possession of a nonmarital residence appropriate when occupying, majority timesharing parent has a definite need, and the non-occupying spouse is financially able to provide home without sacrifice.
WILLIAM SCOTT MARTIN, Husband, Appellant, v. RHONDA J. MARTIN, Wife, Appellee.
CASE NO. 1D06-4402
COURT OF APPEAL OF FLORIDA, FIRST DISTRICT
959 So. 2d 803; 2007 Fla. App. LEXIS 9955; 32 Fla. L. Weekly D 1577
June 27, 2007, Opinion Filed
SUBSEQUENT HISTORY: Released for Publication July 13, 2007.
PRIOR HISTORY: [**1]
An appeal from the Circuit Court for Santa Rosa County. Robert Hilliard, Judge.
DISPOSITION: AFFIRMED in part, REVERSED in part, and REMANDED.
COUNSEL: Thomas C. Staples for Staples, Ellis, & Associates; Louis K. Rosenbloum for Louis K. Rosenbloum, P.A., Pensacola, for Appellant.
James L. Chase for Chase, Quinnell, & Jackson, P.A., for Appellee.
JUDGES: HAWKES, J. PADOVANO and POLSTON, JJ., CONCUR.
OPINION BY: HAWKES
OPINION
[*804] HAWKES, J.
William Scott Martin appeals the final judgment dissolving his marriage to Rhonda J. Martin. He contends the trial court abused its discretion in three ways: first, by not awarding him permanent periodic alimony when his former wife earns approximately two and one-half times more income than he does; second, by not partitioning the marital residence despite the special circumstances of this case; and third, by summarily denying his motion for attorney's fees and costs despite the substantial income disparity between the parties. We AFFIRM the denial of alimony, REVERSE as to the trial court's failure to partition the marital residence and award attorney's fees and costs, and REMAND for further proceedings.
Facts
The parties married in August 1992 and separated in December 2004. The former wife filed for dissolution [**2] in February 2005. At the time of their separation, the parties had two children under the age of ten, and had resided in the newly built marital residence for less than a year.
The marital residence was encumbered by a $ 229,215.00 mortgage, and had a market value of $ 408,000.00. The former wife had a bachelor's degree in accounting, worked as a CPA, and, including bonuses, earned approximately $ 125,000.00 in gross annual income. The former husband had an associate of arts degree, worked as a factory shift worker, and, including overtime, earned approximately $ 50,000.00 in gross annual income.
In July 2006, the trial court entered a final judgment, which denied the former husband's request for permanent periodic alimony; ordered equitable distribution of marital assets, including the marital home, but denied partition since the former wife was named primary residential parent for the children; and denied the former husband's request for attorney's fees and suit costs. The home was to be sold upon the youngest child attaining majority, or the former wife's remarriage.
[*805] Partition of Marital Residence
Distribution of marital assets and liabilities, including the marital residence, begins [**3] with the premise of equal distribution unless there is justification for unequal distribution under the statutory factors. § 61.075(1), Fla. Stat. (2005). As a general rule, a trial court may award the primary residential parent exclusive use and possession of the marital residence until the youngest child reaches majority or the primary residential parent remarries, unless there are special circumstances. See Martinez v. Martinez, 573 So. 2d 37, 43 (Fla. 1st DCA 1990) rev. denied 581 So. 2d 1309 (Fla. 1991). The parties' relative financial positions along with other considerations may constitute special circumstances. See Dehler v. Dehler, 648 So. 2d 819, 820 (Fla. 4th DCA 1995).
Here, the short duration the parties resided in the marital residence, the lack of other significant marital assets, and the large differential in relative earning power together constitute special circumstances. Based upon these special circumstances, the trial court abused its discretion by refusing to order the partition of the marital residence. On remand, the trial court should order partition, unless the parties reach alternative arrangements. 1
1 Nothing in this opinion should be construed to prohibit [**4] one party from purchasing the marital residence from the other party in lieu of partition.
Attorney's Fees and Costs
Pursuant to section 61.16, Florida Statutes, a trial court may order one party to pay an attorney's fee, suit money, and costs for the other party. § 61.16, Fla. Stat. (2005). The parties' financial resources are the primary factor to consider when determining whether to award fees. Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997). The purpose of section 61.16 is to level the playing field in family-law proceedings, ensuring both parties have an equal ability to obtain competent legal counsel. Glasgow v. Wolfe, 873 So. 2d 483, 484 (Fla. 1st DCA 2004). "This provision expressly requires the court to make findings regarding the parties' respective financial needs and abilities to pay." Id. at 484-85 (quoting Sumlar v. Sumlar, 827 So. 2d 1079, 1084 (Fla. 1st DCA 2002)).
In the instant case, the facts are undisputed. The former wife makes substantially more than the former husband. The former husband received a gift of approximately $ 7,500.00 towards his attorney's fees and suit costs from his father. He placed the remainder of his litigation costs on a credit card. Additional [**5] "gifts" from his parents amounted to a $ 9,000.00 interest-free loan, a reduced rental rate on a property owned by his parents in which he was living during the pendency of the dissolution proceedings, a used car titled in his name, and use of a family owned boat. Where the parties' income disparity is substantial, a trial court abuses its discretion by denying a request for attorney's fees and costs. See Jacobs v. Jacobs, 585 So. 2d 404, 405 (Fla. 1st DCA 1991); Kelly v. Kelly, 491 So. 2d 330 (Fla. 1st DCA 1986) (finding abuse of discretion in failing to award attorney's fee where wife had substantially smaller income than husband, the majority of her assets would not become liquid until marital residence was sold, and without liquid assets she would, for the short run, be in a substantially worse financial position than her husband); see also Meighen v. Meighen, 813 So. 2d 173, 177 (Fla. 2d DCA 2002) (holding the granting of partial attorney's fees and costs may be an abuse of discretion where parties' income disparity is substantial).
Earning two and half-times more than one's former spouse constitutes a substantial income disparity. Christ v. Christ, 854 So. 2d 244, 248 [*806] (Fla. 1st DCA 2003); [**6] Hyatt v. Hyatt, 672 So. 2d 74, 76 (Fla. 1st DCA 1996) (holding trial court's denial of fees erroneous due to substantial disparity in parties' income).
Occasional gifts of temporary support given on an irregular basis may not be imputed as income under section 61.16, Florida Statutes. See Shiveley v. Shiveley, 635 So. 2d 1021, 1022-23 (Fla. 1st DCA 1994) (holding past gifts from spouse's parents are not imputed as income); Meighen v. Meighen, 813 So. 2d 173, 176 (Fla. 2d DCA 2002) (holding temporary parental assistance, such as living rent-free in a home owned by a parent during the pendency of the dissolution proceedings does not provide a basis for imputing income). Shiveley reasoned that "[g]ifts which have not yet been received are purely speculative in nature, mere expectancies, and as such are not properly included in the calculation of income for purposes of determining the need for, or the ability to provide, support." Shiveley, 635 So. 2d at 1022-23.
In reviewing the final judgment, it appears the trial court considered parental "gifts" and imputed them as income or "financial resources" when denying former husband attorney's fees and costs. If such was the case, the trial court [**7] erred as a matter of law. Id. Since there were no findings made, we cannot determine the rationale for the trial court's denial of attorney's fees and costs.
AFFIRMED in part, REVERSED in part, and REMANDED. On remand, the court may receive additional evidence if necessary.
PADOVANO and POLSTON, JJ., CONCUR.
ELIZABETH CABRERA, Appellant, v. ANTHONY J. CABRERA, JR., Appellee
No. 85-1024
Court of Appeal of Florida, Third District
484 So. 2d 1338; 1986 Fla. App. LEXIS 6847; 11 Fla. L. Weekly 621
March 11, 1986
SUBSEQUENT HISTORY: [**1] Rehearing Denied April 2, 1986.
PRIOR HISTORY: An Appeal from the Circuit Court for Dade County, Edward N. Moore, Judge.
COUNSEL: Pardo & Pardo and Joseph Pardo, for Appellant.
Horton, Perse & Ginsberg and Mallory Horton, for Appellee.
JUDGES: Barkdull, Baskin and Jorgenson, JJ.
OPINION BY: PER CURIAM
OPINION
[*1339] REVISED OPINION
In its final judgment of dissolution, the trial court granted the wife primary custody of the parties' two-year-old child, ordered the wife and child to vacate the marital residence, and required the husband to pay $7,500 in lump sum alimony and $100 per week in child support. In this appeal, the wife challenges the trial court's failure to award her exclusive occupancy of the marital home until she remarries or the child attains majority. Agreeing that the trial court abused its discretion, we reverse a portion of the final judgment.
Cases dealing with the issue of whether the custodial parent should be awarded exclusive use and possession of the marital home until the children reach majority or the parent remarries have almost without exception answered the question affirmatively. Cato v. Cato, 432 So.2d 768 (Fla. 2d DCA 1983); Cutler v. Cutler, 421 [**2] So.2d 585 (Fla. 3d DCA 1982); Pino v. Pino, 418 So.2d 311 (Fla. 3d DCA 1982); Bullard v. Bullard, 413 So.2d 1238 (Fla. 3d DCA 1982); Florence v. Florence, 400 So.2d 1018 (Fla. 1st DCA 1981); Zeller v. Zeller, 396 So.2d 1177 (Fla. 4th DCA 1981); Farrington v. Farrington, 390 So.2d 461 (Fla. 3d DCA 1980), review dismissed, 399 So.2d 1142 (Fla. 1981); Kemmerer v. Kemmerer, 386 So.2d 1248 (Fla. 3d DCA 1980), review denied, 392 So.2d 1376 (Fla. 1981); Smith v. Smith, 378 So.2d 11 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla. 1980); Dolch v. Dolch, 368 So.2d 618 (Fla. 2d DCA 1979); Bailey v. Bailey, 361 So.2d 204 (Fla. 1st DCA 1978); Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977); Reisman v. Reisman, 314 So.2d 783 (Fla. 3d DCA 1975), cert. denied, 336 So. 2d 107 (Fla. 1976). Cf. Kuvin v. Kuvin, 442 So.2d 203 (Fla. 1983) (marital home not awarded to custodial parent of minor children where $20,000 awarded wife from husband's share of proceeds of ordered sale of house plus her share of proceeds would permit her to find suitable housing for herself and children); Schein v. Schein, 448 So.2d 16 (Fla. 3d DCA 1984) [**3] (absent finding of duty on wife's part to support children, court erred in awarding husband, who had custody of children, rent-free exclusive possession of marital home).
[*1340] Of particular interest is the decision in Florence. There, the first district court of appeal addressed this issue in a case involving facts similar to those before us. The Cabreras resided, for the entire two years of their marriage, in a house purchased by the husband prior to the marriage. In Florence, where the husband had purchased the marital home prior to the three-year marriage, the first district granted the wife exclusive use and possession of the marital home until she remarried or the child reached eighteen or otherwise became emancipated. Because the home remained titled in the husband's name, the husband remained responsible for the mortgage payments. As did the courts in the other cited cases, the Florence court affirmed the principle that the award of exclusive possession of property is directly connected to the obligation to support. Bullard; Farrington; Duncan v. Duncan, 379 So.2d 949 (Fla. 1980).
A review of the parties' finances discloses that Mr. Cabrera owns [**4] a controlling interest in a general contracting corporation and has a net worth of approximately $619,000. In addition to the salary he receives from the corporation, he is using corporate funds to buy out his former "partner's" interest at the rate of $4,166.67 per month. Thus, he is financially able to provide adequate housing for his child without inordinate sacrifice on his part. See Singer. Mrs. Cabrera, on the other hand, has remained a housewife and is rearing the child full time. She did not work outside the home during the marriage.
This court previously stated that "the breakup of their parents' marriage is . . . a severe trauma to young children; this additional physical and psychological dislocation [from the family home] should not be imposed upon them unless there is a very good reason indeed for doing so." Pino, 418 So.2d at 312; see Singer. As in Pino, no good reason exists here for removing the wife and child from the marital home. We therefore reverse that portion of the final judgment of dissolution which requires the wife and child to remove themselves from the marital home. We hold that the wife is entitled to exclusive occupancy of the residence [**5] for herself and the child until the wife remarries or the child attains majority, marries or is no longer dependent. Should the wife prefer, she may accept equivalent substitute housing. We find no abuse of discretion in the remainder of the judgment. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).
For these reasons, we affirm in part, reverse in part, and remand for the entry of a judgment consistent with this opinion and for an equitable determination as to which party shall bear the reasonable and necessary expenses associated with the use and upkeep of the marital home. Judge v. Judge, 370 So.2d 833 (Fla. 2d DCA 1979); Fraser v. Fraser, 368 So.2d 97 (Fla. 3d DCA 1979).
Affirmed in part; reversed in part; remanded for further proceedings consistent with this opinion.
By Kenny Leigh
