Opinion
No. 87-0224.
November 16, 1988.
Appeal from the Circuit Court, Palm Beach County, William C. Williams, III, J.
Christopher J. Rush of Law Office of Richard E. Bosse, Boca Raton, for appellant/cross appellee.
Fox Fox, P.A., Boca Raton, and Barbara J. Compiani of Edna L. Caruso, P.A., West Palm Beach, for appellee/cross appellant.
We affirm the trial court on all issues raised by the parties on appeal and cross appeal except for the special equity issue raised by both the wife and husband. We reverse and remand for the trial court to reconsider the real property special equity award to the wife in light of her outstanding obligation on the FMHA promissory note of 1984.
The trial court awarded the wife a $15,000 special equity in real property titled in her husband's name. We affirm the award of an interest in the disputed property, but do so on the theory that the property was a marital asset subject to equitable distribution. Canakaris v. Canakaris, 382 So.2d 1197, 1200-01 (Fla. 1980). However, as to the amount of the award, we reverse.
Since the wife is still obligated on the jointly executed promissory note used to finance the entire purchase price of the disputed property, she is entitled to a larger award than a $15,000 interest in the $181,600 piece of property. At the time of the final hearing, nearly $153,000 was still owed on the property for which the wife could be held responsible. Accordingly, we hold that the trial court abused its discretion in only awarding the wife an 8% interest in the property.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
ANSTEAD, J., concurs.
GLICKSTEIN, J., concurs in part and dissents in part with opinion.
I agree with reversal on the special equity issue raised by both parties, but would additionally remand to the trial court with direction to rule on the issue of rehabilitative alimony to the wife. Cf. Westberry v. Westberry, 226 So.2d 405 (Fla.2d DCA 1969) (Written final divorce decree reversed and cause remanded where provisions of written decree failed to conform to orally pronounced final decree of the court).
In the instant case, during the trial court's closing comments, the following colloquy took place:
THE COURT: I want to ask Mrs. Enders a question: How far did you go in college to Catawba?
MRS. ENDERS: 3 1/2 years.
THE COURT: Unless you were taking basket weaving. I don't know why your courses wouldn't transfer down here. That's a good school.
MRS. ENDERS: It was over 10 years ago.
THE COURT: I know. I think they might be liberal about that. I don't think it will take as long for you to get your degree as you think it will.
I think in view of the fact that she gave up her business for the children. I think she is entitled to rehabilitative alimony for a period of three years. I think would do it.
I think you can do it in three years, and then that will be the end of that.
The wife's support was clearly an issue in this case. Nevertheless, the final judgment is silent on the issue of alimony, rehabilitative or any other kind.
The majority does not state why it affirms as to the alimony issue. Its reasoning cannot be grounded in the reasonableness test for review of a judge's discretionary decision, which is delineated in Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980), for here we deal with an omission to decide, not a decision.