Summary
In Pearson v. Pearson, 213 So.2d 304 (3d D.C.A.Fla. 1968), it was held that it is reversible error for a chancellor to adjudicate, upon a petition for dissolution, rights in property held by the entirety in which the pleadings afforded no basis for relief. Accordingly, the refusal of the court below to order division of the property did not constitute error.
Summary of this case from Toby v. TobyOpinion
No. 67-934.
August 6, 1968.
Appeal from the Circuit Court, Dade County, Grady L. Crawford, J.
Harold Peter Barkas, Miami, for appellant.
Wolfson, Diamond Silverstein and Jay L. Kotzen, Miami Beach, for appellee.
Before BARKDULL, HENDRY and SWANN, JJ.
Appellant-husband was the defendant in a divorce suit wherein his wife was granted a divorce and awarded title to the home, which was held by the parties as a tenancy by the entireties.
Appellant seeks reversal of that part of the decree relating to the property rights of the parties. He raises the point on appeal that it was error for the chancellor to enter any order relating to his property rights in the home because the complaint for divorce contained no allegation relating to property rights, description of property owned, amount of contribution or prayer for partition. Appellant further points out that he was in jail at the time the divorce proceedings were brought, that he filed no pleadings therein and that he was not in attendance at the hearing.
We have carefully reviewed the record on appeal and considered the law as it relates to the point on appeal. We conclude that the pleadings afforded no basis for the relief granted in that portion of the decree relating to defendant's interest in the property held by the parties as an estate by the entireties. Accordingly that portion of the decree is reversed. The remaining portion stands affirmed. Valentine v. Valentine, Fla. 1950, 45 So.2d 885; Nethery v. Nethery, Fla.App. 1968, 212 So.2d 10 (Opinion filed July 2, 1968, D.C.A. 1st); Wilkerson v. Wilkerson, Fla.App. 1965, 179 So.2d 592; Banfi v. Banfi, Fla.App. 1960, 123 So.2d 52; § 689.15, Fla. Stat., F.S.A.
Affirmed in part and reversed in part.