Opinion
No. HH-265.
April 19, 1978.
Appeal from the Circuit Court for Clay County, Susan H. Black, J.
Lester Makofka, of Makofka Beatty, Jacksonville, for appellant.
James I. Riley, Jacksonville, for appellee.
Husband contends on his appeal from a final judgment of dissolution that the trial court erred in awarding wife the use and occupancy of the parties' marital home. We disagree and affirm. Although the award was not made pursuant to an award of child custody or as lump sum alimony, the record reveals that wife at the time of dissolution was a 56-year-old woman in rather poor health with only an eighth grade education. Her employment experience was limited to work at a textile mill early in the marriage and a brief stint as a Christmas salesclerk for W.T. Grant Company more than ten years ago. In addition the testimony established that Mrs. Taylor was somewhat handicapped by her inability to speak English without a pronounced accent.
The facts here are remarkably similar to those in McDonald v. McDonald, 346 So.2d 610 (Fla. 1st DCA 1977), in which this court affirmed a similar award to a 39-year-old wife with a seventh grade education who had worked as a waitress, clerk, school bus driver and nurses's aide. See Opinion of Mills, J., concurring in part and dissenting in part. If anything, the facts here are more compelling than those in McDonald, supra. The trial court did not err in its award. Husband's other points being without merit, the judgment is affirmed.
Wife's attorney's fees for this appeal are provisionally granted in accordance with this court's opinion in Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).
ERVIN and BOOTH, JJ., concur.
MILLS, Acting C.J., dissents.
I dissent.
Exclusive possession of jointly owned property can only be awarded to a mother with minor children in her custody or as lump sum alimony. Ranes v. Ranes, 311 So.2d 370 (Fla. 2d DCA 1975); Saviteer v. McAdoo, 310 So.2d 28 (Fla. 2d DCA 1975).
There were no minor children in this case nor was the exclusive use and occupancy of the marital home awarded to Mrs. Taylor as lump sum alimony. The court erred in its award of the use and occupancy of the home by Mrs. Taylor and erred in denying Mr. Taylor's prayer for partition of the jointly owned property.
I would deny Mrs. Taylor's motion for attorney's fees.