Opinion
No. 76-670.
January 28, 1977.
Appeal from the Circuit Court for Hillsborough County, Carl C. Durrance, J.
Ann Loughridge Kerr, Tampa, for appellant.
James S. Moody, Jr., Trinkle, Redman, Clawson, Alley, Swanson Moody, Plant City, for appellee.
On this appeal by the wife from a judgment of dissolution, we find one point to have merit. The court erred in partitioning the parties' nursery business when there was no prayer for partition and the issue was not tried by consent. Doane v. Doane, 330 So.2d 753 (Fla. 2d DCA 1976); Rankin v. Rankin, 258 So.2d 489 (Fla. 2d DCA 1972).
Accordingly, the following paragraph in the court's final judgment is hereby stricken:
"ORDERED that the nursery plants, and the equipment used in the operation thereof, be divided equally between the parties, or in the alternative be sold and the proceeds divided equally, unless the parties otherwise reach agreement thereon."
Otherwise, the judgment is affirmed.
BOARDMAN, C.J., and McNULTY, J., concur.