Opinion
No. 87-0260.
May 3, 1989. Rehearing Denied June 14, 1989.
Appeal from the Circuit Court for Broward County; Lawrence L. Korda, Judge.
A. Matthew Miller and James Fox Miller of Miller and Schwartz, P.A., Hollywood, for appellant.
Jane Kreusler-Walsh of Klein, Beranek Walsh, P.A., West Palm Beach, and Ferrero, Middlebrooks, Strickland Fischer, P.A., Fort Lauderdale, for appellee.
Except as specifically enumerated herein, we affirm the final judgment of dissolution of marriage which is the subject matter of this appeal.
It is conceded by appellee that creating a charge against appellant's estate for alimony and child support payments is erroneous and we strike those provisions.
We cannot tell from this record whether the pension plan, which resulted in the trial court's attempt to utilize a qualified domestic relations order, permitted payments as required by the order. We therefore reverse and remand for further consideration of this issue which will require an evidentiary hearing. We suggest that the burden should be placed upon appellant to show that potential benefits do not qualify, as argued in his brief on appeal.
Finally, the award of exclusive use and occupancy of the marital home to appellee until the youngest child attains the age of twenty-one is erroneous. In light of the argument that something else was intended, we reverse this provision for reconsideration upon remand.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
HERSEY, C.J., and GUNTHER, J., concur.
LETTS, J., concurs in part and dissents in part with opinion.
The majority opinion is somewhat cryptic, but I find no fault with it, with the exception of the ultimate paragraph.
By giving the wife sole and exclusive occupancy of the marital home for a considerable period beyond the eighteenth birthday of the youngest child, the trial court clearly violated this court's holding in Carter v. Carter, 511 So.2d 404 (Fla. 4th DCA 1987). As a consequence, this aspect of the final judgment should be unequivocally reversed rather than be reversed and remanded for "reconsideration."
It is true that, because something else may have been intended, the final judgment made some reference to the oldest child Greg being "dependent" apparently because he was already 18 years old. That was error. The final judgment also observed that Greg had a port-wine birthmark that needed removal. However, there was no evidence whatsoever that this birthmark made him dependent and the wife never alleged that it did, either in the trial court or in her brief on appeal. Moreover, the provision about exclusive occupancy would also appear to cover a period after the youngest child, Marianne, reaches the age of 18. There is no suggestion, as to her, of continuing dependency for any reason whatsoever other than her present age of 16.
I therefore dissent as to any remand for reconsideration of this issue, although I concur as to its reversal.
Finally, the majority opinion only reverses this issue as to the youngest child. Clearly, it should be reversed as to both children.