By Jonathan Mann, Esq.
SSRGA recently secured the denial of a former husband’s attempt to stay an action for partition of the parties’ former marital home following a high-conflict divorce.
The parties filed for divorce after a long-term marriage. The proceedings were contentious. The trial court conducted a trial lasting three days. The trial court received extensive evidence from witnesses, including the parties and their forensic accountants, regarding the parties’ property. The trial court later rendered a final judgment dividing the parties’ marital property.
The trial court ruled in the final judgment that it could not order the sale of the parties’ former marital home in Florida because neither party included a request for partition in the pending pleadings. The former husband did not include a request for partition of the parties’ former marital home in his petition for dissolution of marriage. The former wife included a request for partition in her original counterpetition, but later filed an amended counterpetition that did not include a partition request. As a result, there was no pending claim for partition at the time of the court’s final judgment. The trial court reluctantly awarded the former marital home to the parties 50-50 as tenants in common.
The trial court also rejected the former husband’s request to assign half of the approximately $1.5 million in debt in his name to the former wife as marital debt. The former husband incurred the debt on a line of credit secured by real estate that the former husband owned prior to the marriage. The former husband had used the funds obtained from the line of credit for marital and nonmarital purposes during the marriage. The court also rejected the former wife’s claim to a marital component of those same properties, despite the contribution of marital funds earned solely from her business to the maintenance of the properties during the marriage.
The former husband appealed the final judgment of divorce to the Second District Court of Appeal (“Second DCA”). The former husband continued to live in the former marital home during the appeal to the complete exclusion of the former wife, and denied any benefit to the former wife from her 50% tenancy in common ownership. This forced the former wife to start a separate action for partition in circuit court seeking to have the court order the sale of the former marital home.
The former husband then filed a motion to stay the partition action until the conclusion of his appeal of the final judgment of divorce. The former husband argued that he had a high likelihood of success on appeal. He argued the trial court abused its discretion in distributing the former marital home to the parties 50-50 because the parties could not operate as 50-50 partners and he was running a nursery business on the property. He also argued that the family judge should have classified his debt as marital because some of the proceeds of the debt were used for marital purposes and benefited the former wife. The former husband asserted that he would suffer irreparable harm if a stay was not granted, as the property was his homestead and he was operating his business on it.
SSRGA represented the former wife in the appeal, and as co-counsel regarding the motion for stay in the trial court. In our response in opposition to the stay motion, we argued that the former husband did not have a high likelihood of success on appeal. The trial court’s conclusion that it lacked the authority to partition the former marital home was correct under settled Florida law because a court in dissolution proceedings has no authority to partition jointly held property in the absence of the parties’ agreement or a specific pleading requesting partition. We maintained that the parties’ inability to operate as partners and the former husband’s operation of a business on the property did not change the result.
We also argued that the trial court had correctly declined to characterize the former husband’s debt as marital. We stressed that the former husband incurred the debt in exchange for his equity in real properties owned prior to the marriage. Accordingly, the debt was properly nonmarital under section 61.075(6)(b)(1), Florida Statutes. We pointed out that it would be inequitable for the court to assign the former wife half of the debt the former husband incurred for his premarital property while denying her any marital component in those properties, despite the contribution of marital funds earned by her during the marriage. We argued that it was inequitable for the former husband to remain in the property while the lengthy appeal process proceeded, while denying the former wife any benefit of her ownership in the property.
After a hearing, the trial court judge issued an order denying the former husband’s request for a stay of the partition action. The court agreed with our arguments regarding the former husband’s lack of likelihood of success on appeal and the lack of irreparable harm to the former husband from denial of stay. This favorable result for our client allows her to continue to proceed with the partition action to force the sale of the former marital home of which she was awarded 50% tenancy in common ownership in the final judgment of divorce.
* Not final until exhaustion of any appellate remedies.
Jonathan Mann is a senior associate in the Boca Raton office of Schwartz Sladkus Reich Greenberg Atlas LLP. He is board certified in appellate law.