Opinion
No. 88-661.
September 29, 1988. Rehearing Denied November 14, 1988.
Appeal from the Circuit Court, Duval County, Clifford Shepard, J.
Michael J. Korn, of Christian, Prom, Korn Zehmer, P.A., Jacksonville, for appellant.
Clyde W. Davis, Fernandina Beach, for appellee.
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.
If we were writing on a clean slate, I would have difficulty with that portion of the Court's opinion which orders stricken the provision terminating the wife's exclusive use and benefit of the parties' marital home if she "cohabits with an unrelated male" on the premises. However, in view of the consistency of expressions on the subject emanating from our appellate courts, I concur with the court's opinion. But on remand, I would expressly permit the trial court, should it elect to do so, to amend the final judgment by including a provision of the kind approved by the Fourth District in Aycock v. Aycock, 498 So.2d 999 (Fla. 4th DCA 1986):
See Martin v. Martin, 507 So.2d 1136 (Fla. 3rd DCA 1987); Miller v. Miller, 423 So.2d 638 (Fla. 4th DCA 1982); Danoff v. Danoff, 501 So.2d 1361 (Fla. 4th DCA 1987); Nichols v. Nichols, 491 So.2d 617 (Fla. 1st DCA 1986); Howard v. Howard, 467 So.2d 768 (Fla. 1st DCA 1985); and Greer v. Greer, 438 So.2d 535 (Fla. 2nd DCA 1983).
[E]xclusive possession [will] also terminate upon the wife's remarriage or upon the home also becoming the permanent residence of an adult male under such circumstances as (1) to affect adversely the welfare of the children or (2) to substantially and materially take advantage of the benefits of the husband and father's payments, without contribution which said individual is capable of making or (3) to substantially and materially contribute to the support of the wife.Id. at 1000. See also Dahlhofer v. Dahlhofer, 495 So.2d 858 (Fla. 4th DCA 1986).