May 3, 2023

SSRGA Obtains Reversal of Order Dismissing Former Husband’s Complaint For Partition of Former Marital Home

By Jonathan Mann

SSRGA recently secured the reversal of an order dismissing a former husband’s complaint for partition and foreclosure of the parties’ former marital home. The lawsuit stemmed from the parties’ divorce.

The parties were previously divorced by entry of a final judgment that incorporated a Marital Settlement Agreement (“MSA”) that resolved issues of support and equitable distribution. The MSA provided that the former husband would execute a quit claim deed conveying his interest in the former marital home to the former wife. The quit claim deed would be held in escrow and not recorded until the former husband received the distribution of his equity in the home from the former wife. The MSA required the former wife to refinance the home or list it for sale within 90 days of an appraisal to occur on or before a specified date. The MSA also stated that the former husband had enforcement rights available if the former wife failed to refinance or list the home for sale within 90 days. The MSA reserved jurisdiction to the family court for all future dissolution related matters.

The former wife later refused to comply with the MSA’s requirement to refinance or list the home for sale, as well as its requirements to complete required repairs and maintain the home in good condition. As a result, the former husband initiated an action in circuit court seeking partition and foreclosure of the home. The former husband’s case was filed as a separate action in the civil division rather than in the divorce case. The trial court dismissed the former husband’s complaint, concluding that the family court had jurisdiction over the matter pursuant to the MSA. The former husband appealed.

SSRGA represented the former husband on appeal to the Fourth District Court of Appeal (“Fourth DCA”). We argued that, under Florida law, a circuit court does not lack jurisdiction simply because a case is filed or assigned to the wrong division within the circuit court. Rather, a case filed in the wrong division should be transferred to the correct division as opposed to dismissed. We also stressed that the question of transfer or dismissal has real consequences because a party who obtains dismissal may seek attorney’s fees as the prevailing party based on the erroneous dismissal, as the former wife had done.

The Fourth DCA issued a written opinion in which it agreed with SSRGA’s argument. The Fourth DCA relied upon Florida cases holding that a circuit court does not lack jurisdiction simply because a case is filed or assigned to the wrong division within the circuit court, and that the proper remedy is to transfer the case to the appropriate division rather than dismissal. Accordingly, the Fourth DCA held that the trial court erred in dismissing the former husband’s complaint instead of transferring it to the family court. The Fourth DCA reversed and remanded for the trial court to transfer the former husband’s complaint to the family court. The Fourth DCA also granted the former husband’s request for appellate attorney’s fees conditioned upon the trial court determining that he was the prevailing party.

This favorable result for our client reverses the dismissal of his partition and foreclosure action and the related exposure to paying his former wife’s attorney’s fees. It should allow him to pursue his claim for relief in the family court and also seek an award of appellate attorney’s fees in the trial court.


* Not final until disposition of timely filed motion for rehearing.

This information is provided for general educational purposes and may not apply to your specific situation. Please consult with an attorney before relying on this information.