Florida District Courts of Appeal, 1987

Perez v. Pelea

Florida District Courts of Appeal · Decided August 11, 1987 · Baskin, Jorgenson, Schwartz

510 So. 2d 1167; 12 Fla. L. Weekly 1949; 1987 Fla. App. LEXIS 9778 (Southern Reporter, Second Series)

Opinion of the Court

PER CURIAM.

We affirm the final judgment under review but remand with directions to the trial court to conform the provisions of the final judgment dealing with the sale of the marital domicile to this court’s pronouncement in Tinsley v. Tinsley, 490 So.2d 205 (Fla. 3d DCA 1986).

Affirmed and remanded with directions.

SCHWARTZ, C.J., and JORGENSON, J., concur.

Dissenting Opinion

BASKIN, Judge

(dissenting).

Paragraph nine of the final judgment of dissolution provides for a credit to the wife to be paid by the husband.1 To effectuate the intended result, the husband must sat*1168isfy his debt to the wife from his portion of the sale proceeds and not from their combined funds. That means that the husband’s obligation should not be “taken off the top” as the trial court ordered, but should be paid solely from the funds he receives from the sale. Rutkin v. Rutkin, 345 So.2d 400 (Fla. 3d DCA 1977); see Price v. Price, 389 So.2d 666 (Fla. 3d DCA 1980), review denied, 397 So.2d 778 (Fla. 1981); Lyons v. Lyons, 208 So.2d 137 (Fla. 3d DCA 1968). The trial court intended to recompense the wife but, by employing a “from-the-top” method, unintentionally required her to pay half the husband’s obligation. That error must be corrected. I would therefore reverse and remand solely for correction of paragraph nine.

. The final judgment provides:

9. That the parties owned, as tenants of the entirety, a certain parcel of real estate, to wit: the marital home located at 5337 S.W. 133rd Place, Miami, Dade County, Florida. The Wife shall have exclusive possession, use and occupancy of the marital home until such time as the youngest child has attained the age of eighteen, (18), married, died, joined military service, or is otherwise emancipated. During the time of her exclusive possession, occupancy, and the use of the marital home, the Wife shall bear full responsibility for the mortgage payments (P.I.T.I.), and that she shall receive a credit of one-half the mortgage payments made by her as representative of her payment of the Husband's one-half interest in the marital home. Any and all maintenance items on the marital home in excess of Five Hundred ($500.00) Dollars shall be split between the parties 50/50. Upon the youngest child attaining the age of eighteen (18), or being otherwise emancipated, the marital home will then be listed for sale; and, after the subtraction of the reasonable costs of sale and the credits due the Wife for her one-half mortgage payments on behalf of the Husband, the remaining proceeds shall be split 50% to the Wife, and 50% to the Husband.

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