Bailey v. Bailey

7 Citing cases

  1. Boykin v. Boykin

    445 So. 2d 538 (Miss. 1984)   Cited 4 times
    Affirming award to wife of use and possession of marital home even though husband was awarded custody of minor child

    He cites several cases from Florida and Alabama to support this contention. See: Zeller v. Zeller, 396 So.2d 1177 (Fla.App. 1981); McMaster v. McMaster, 379 So.2d 189 (Fla.App. 1981); Weaver v. Weaver, 394 So.2d 378 ( certiori denied Ex parte Weaver, 394 So.2d 380 (Ala. 1981)) (Ala. Civ. App. 1980); Hudson v. Hudson, 391 So.2d 664 (Ala. Civ. App. 1980); Ray v. Ray, 379 So.2d 627 (Ala. Civ. App. 1980); Hausler v. Hausler, 382 So.2d 806 (Fla. App. 1980); McDonald v. McDonald, 368 So.2d 1283 (Fla. 1979); Alford v. Alford, 364 So.2d 1255 (Fla.App. 1978); Bailey v. Bailey, 361 So.2d 204 (Fla.App. 1978); and Cobb v. Cobb, 352 So.2d 1384 (Ala. Civ. App. 1977). We construe these cases, at least insofar as they have any application in this state, that as a general rule it is better to award possession of the marital residence to the party who is given custody of the children.

  2. Cabrera v. Cabrera

    484 So. 2d 1338 (Fla. Dist. Ct. App. 1986)   Cited 16 times
    In Cabrera, supra, the wife was granted primary custody of the parties' two-year-old child and was ordered to vacate the marital residence along with the child.

    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 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).

  3. Lambert v. Lambert

    403 So. 2d 484 (Fla. Dist. Ct. App. 1981)   Cited 12 times

    This holding, however, ignores the rule that a spouse's right, as custodian of the children of the dissolved marriage, to exclusive possession of a marital home granted by a dissolution decree terminates upon that spouse's remarriage. Strollo v. Strollo, 365 So.2d 189 (Fla. 1st DCA 1978); Bailey v. Bailey, 361 So.2d 204 (Fla. 1st DCA 1978); Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977); Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976); Abella-Fernandez v. Abella, 393 So.2d 40 (Fla. 3d DCA 1981). The reason behind the above stated rule is to avoid imposing on the former husband the obligation of providing shelter and habitation for his ex-wife's new spouse.

  4. Caldwell v. Caldwell

    400 So. 2d 1270 (Fla. Dist. Ct. App. 1981)   Cited 6 times

    Prior to Duncan v. Duncan, 379 So.2d 949 (Fla. 1980), the Florida courts held that the custodial parent was entitled to the exclusive use and possession of the marital home until the parties' children reached majority or until his or her remarriage. See, e.g., McMaster v. McMaster, 379 So.2d 189 (Fla. 4th DCA 1980); Bailey v. Bailey, 361 So.2d 204, 205 (Fla. 1st DCA 1978); Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976); Hendricks v. Hendricks, 312 So.2d 792 (Fla. 3d DCA 1975). Duncan rejected the asserted "inflexible rule" that exclusive possession must terminate when all children born of the marriage have attained the age of majority. The court, however, did not address the issue whether the award must terminate upon remarriage of the spouse.

  5. Zeller v. Zeller

    396 So. 2d 1177 (Fla. Dist. Ct. App. 1981)   Cited 22 times
    Holding that dissolution petition request that the parties' joint property be "adjusted and determined" was insufficient to grant partition

    These awards are proper because they are in the nature of maintenance and support. Alford v. Alford, 364 So.2d 1255 (Fla. 2nd DCA 1978); Bailey v. Bailey, 361 So.2d 204 (Fla. 1st DCA 1978); Robinson v. Robinson, 340 So.2d 935 (Fla. 4th DCA 1976). The husband is a medical doctor specializing in pathology and earns in excess of $85,000 per year.

  6. Kemmerer v. Kemmerer

    386 So. 2d 1248 (Fla. Dist. Ct. App. 1980)   Cited 2 times

    Under the circumstances presented in the record, we hold that the trial court abused its discretion in failing to grant the wife and minor children of the parties the right to live in the marital home until the wife dies or remarries, or the younger child reaches majority. Smith v. Smith, 378 So.2d 11, 17 (Fla. 3d DCA 1979); Alford v. Alford, 364 So.2d 1255 (Fla. 2d DCA 1978); Bailey v. Bailey, 361 So.2d 204, 205 (Fla. 1st DCA 1978); Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977); McNaughton v. McNaughton, 332 So.2d 673 (Fla. 3d DCA 1976), cert. denied, 345 So.2d 424 (Fla. 1977); Plant v. Plant, 320 So.2d 455 (Fla. 3d DCA 1975), cert. denied, dismissed, 336 So.2d 107, 341 So.2d 292 (Fla. 1976); Reisman v. Reisman, 314 So.2d 783 (Fla. 3d DCA 1975), cert. denied, 336 So.2d 107 (Fla. 1976); Venzer v. Venzer, 308 So.2d 544 (Fla. 3d DCA 1975). Upon remand, the final judgment of dissolution under review shall be appropriately amended to reflect this determination.

  7. Smith v. Smith

    378 So. 2d 11 (Fla. Dist. Ct. App. 1980)   Cited 6 times
    In Smith, supra, at 18, we reversed the trial court's determination that the wife had no interest in jointly titled shares of stock acquired from funds earned by the husband during the marriage.

    We think, therefore, that there is no basis for declining to grant the wife the right to occupy the residence with the children until she remarries or the youngest attains majority. As was stated in Bailey v. Bailey, 361 So.2d 204, 205 (Fla. 1st DCA 1978): There were no pleadings which sought a partition of the property and no formal order requiring it.