Roth
v.
Roth

District Court of Appeal of Florida, Third DistrictFeb 23, 1993
611 So. 2d 1268 (Fla. Dist. Ct. App. 1993)

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No. 91-2754.

December 8, 1992. Rehearings Denied February 23, 1993.

Appeal from the Circuit Court, Dade County, Joseph Farina, J.

Deborah Marks, North Miami, for appellant.

James C. Blecke, Burt E. Redlus, Miami, for appellee.

Before HUBBART, BASKIN and GODERICH, JJ.


Patricia Roth, former wife of Harold Roth, appeals a final judgment granting partition of the marital home in an action by Harold Roth for partition of the home and division of the sale proceeds. The trial court entered an order granting partition and awarding each party credits against the sale proceeds. On appeal, the wife argues that the trial court erred in awarding the husband certain credits. The husband has not appealed the judgment.

We affirm the judgment except for the credit awarded to the husband for mortgage payments [$14,534.28] and remitted property taxes [$2,795.83]. The husband is not entitled to a credit for the mortgage payments, when as here, the payments constituted his support obligation. See Pastore v. Pastore, 497 So.2d 635, 637 (Fla. 1986) (where order to pay all home expenses constitutes a form of rehabilitative alimony, trial court did not err in failing to award payor credit upon sale of home); Fitzgerald v. Fitzgerald, 558 So.2d 122 (Fla. 1st DCA 1990) (where court orders party to pay mortgage as spousal support, paying party is not entitled to credit for those expenses). However, the husband is entitled to a credit for half of the property taxes he paid; the payment of property taxes was not a support requirement in the agreement and as tenants in common both parties bear equal responsibility for the payment. Kelly v. Kelly, 583 So.2d 667 (Fla. 1991). Accordingly, we reverse that portion of the order.

The property agreement provided, in pertinent part:
3. Husband shall make the mortgage payments [$95.00] on the above described home and will provide the maintenance and repairs of said home; and
4. Wife is to provide the balance of support including food clothes, etc., for herself and the [four] minor children of the parties hereto.

Affirmed in part; reversed in part; and remanded for proceedings consistent with this opinion.