DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MYRA BLEW,
Appellant,
v.
MICHAEL BLEW,
Appellee.
No. 4D22-2127
[March 29, 2023]
Appeal of nonfinal order from the Circuit Court for the Nineteenth
Judicial Circuit, Martin County; Brett M. Waronicki, Judge; L.T. Case No.
43-2021-DR-000805.
L. Lisa Batts of Stuart Law Group, P.A., Stuart, for appellant.
Stacy N. Beaulieu-Fawcett of the Beaulieu-Fawcett Law Group, P.A.,
Delray Beach, for appellee.
CONNER, J.
In this nonfinal appeal, the wife seeks to reverse a trial court order
granting the husband’s motion for summary judgment in a pending
dissolution of marriage action, granting partition of the marital home, and
requiring the sale of the marital home prior to dissolving the marriage.
Because Florida law does not permit partition of property held as tenants
by the entireties while the parties are married, we reverse and remand for
further proceedings.
Background
The wife petitioned for dissolution of marriage, asserting a count for
partition of the marital residence, which the parties owned as tenants by
the entireties. The husband answered and counter-petitioned for
dissolution of marriage, also asserting a count for partition. While other
aspects of the dissolution action were still being litigated, the husband
moved for summary judgment, seeking partition prior to the final
dissolution hearing.
At the summary judgment hearing, the wife argued the motion should
be denied because, as a matter of law, no right to partition existed prior to
entry of a final judgment. The wife pointed out that the husband could
have sought an interim partial distribution under section 61.075(5),
Florida Statutes (2021), upon a showing of “extraordinary circumstances,”
but he had not. The wife further argued disputed facts existed regarding
her property interest in the home and use of the home for her support.
The husband argued summary judgment was appropriate because both
parties were seeking the same relief. Further, he argued that he asserted
good cause for immediate sale by showing that the wife was running a
business out of the home while not contributing to any of the household
expenses.
The trial court found no genuine issue of material fact concerning the
partition, as each side was requesting the same relief. The trial court
explained this was not an interim partial distribution of the home’s value,
as the distribution issue remained to be determined. The trial court also
explained that the wife’s preference to remain in the home until a
temporary relief hearing was conducted did not create a genuine dispute
of facts. Accordingly, the trial court granted summary judgment, and
ordered the property be immediately listed for sale and both parties to
cooperate with the sale. The trial court further ordered counsel to retain
the sale proceeds in an escrow account until further order.
Appellate Analysis
Identical to the corresponding rule of civil procedure, Florida Family
Law Rule of Procedure 12.510(a) gives the standard for granting summary
judgment in family cases: “The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fla. Fam. L. R. P.
12.510(a). Summary judgment is proper “if there is no genuine issue of
material fact and if the moving party is entitled to a judgment as a matter
of law.” Menendez v. Palms W. Condo. Ass’n,
736 So. 2d 58, 60 (Fla. lst
DCA 1999). The standard of review on a motion for summary judgment is
de novo. Volusia County v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d
126, 130 (Fla. 2000).
Our research revealed no Florida caselaw permitting a partition sale of
a marital home owned as tenants by the entireties prior to the entry of
final judgment dissolving the marriage of the owners. Nor have we
identified any caselaw pertaining to a court-ordered partition prior to entry
of a final dissolution judgment, where both parties agreed to the partition
2
in the pleadings. However, numerous cases discuss partition ordered in a
final dissolution judgment or thereafter. See, e.g., Salazar v. Giraldo,
190
So. 3d 248, 248 (Fla. 5th DCA 2016); Coristine v. Coristine,
53 So. 3d 1204,
1204 (Fla. 5th DCA 2011); Anderson v. Anderson,
424 So. 2d 943, 944
(Fla. 5th DCA 1983); Zeller v. Zeller,
396 So. 2d 1177, 1178 (Fla. 4th DCA
1981).
“Actions for partition are based in equity and are governed by chapter
64, Florida Statutes[.]” Marks v. Stein,
160 So. 3d 502, 506 (Fla. 2d DCA
2015) (citing § 64.011 Fla. Stat. (2013)); see also Willard v. Willard,
145
U.S. 116, 120-21 (1892) (recognizing that partition actions were
authorized by English statutes dating back to the reign of Henry VIII). In
dissolution of marriage actions, “[t]o justify partition one of the parties
must plead a right thereto in accordance with Chapter 64[.] A [general]
prayer for a division of the property of the parties is insufficient.” Niemann
v. Niemann,
294 So. 2d 415, 416 (Fla. 4th DCA 1974); see also Zeller,
396
So. 2d at 1178 (holding that dissolution petition request that the parties’
joint property be “adjusted and determined” was insufficient to grant
partition); Poitier v. Poitier,
458 So. 2d 428, 428 (Fla. 3d DCA 1984)
(reversing a judgment partitioning tenancy by the entireties property “in
the absence of an appropriate request and compliance with the
requirements of Chapter 64, Florida Statutes”). The requirement of a
pleading pursuant to Chapter 64 “is no idle whim since partition involves
certain rights, such as the right to partition in kind, a determination of the
respective interests of the parties in the property, and the proper
distribution of the proceeds from a sale.” Zeller,
396 So. 2d at 1178. The
record is clear that both parties filed petitions seeking partition of the
marital home. 1
Because partition is a statutory remedy in Florida, the statutory
provision explaining who may bring a partition action against whom is
controlling. Section 64.031, Florida Statutes (2021), states: “The action
may be filed by any one or more of several joint tenants, tenants in common,
or coparceners, against their cotenants, coparceners, or others interested
in the lands to be divided.” § 64.031, Fla. Stat. (2021) (emphasis added).
Additionally, section 64.051, Florida Statutes (2021), which addresses
partition judgments, provides: “The court shall adjudge the rights and
interests of the parties, and that partition be made if it appears that the
parties are entitled to it.” § 64.051, Fla. Stat. (2021) (emphasis added).
1The husband’s dissolution petition specifically cited Chapter 64 as the basis for
his partition request. The wife did not reference any statute. But, because
partition is a statutory remedy, we construe her request to be pursuant to
Chapter 64 as well.
3
The plain language of sections 64.031 and 64.051 makes clear that a
partition judgment may be entered in favor of a joint tenant, tenant in
common, or coparcener against a joint tenant, tenant in common, or
coparcener. We find nothing in Chapter 64 that authorizes a tenant by the
entireties to seek a partition of property jointly owned by his or her spouse.
Florida caselaw has long held that property held by spouses as tenants
by the entireties is not subject to partition. See Hunt v. Covington,
200 So.
76, 77 (Fla. 1941). That is because a tenancy by the entireties is “an estate
over which the husband and wife have absolute disposition and as to
which each, in the fiction of law, holds the entire estate as one person.”
Id.
(emphasis added); see also Logan Moore Lumber Co. v. Legato,
131 So. 381,
382 (Fla. 1930) (“An estate by the entireties is vested in husband and wife
as one person . . . it cannot ordinarily be partitioned during their joint
lives[.]”). Thus, as a matter of law, partition is designed to provide a
remedy where two or more persons have separate, and sometimes
unequal, joint ownership interests in real property, but no logical reason
for the remedy exists in the context of a single unit of ownership.
In the instant case, both parties petitioned to partition the marital home
which they owned as tenants by the entireties. However, because Chapter
64 governs partitions, and because sections 64.031 and 64.051 do not
allow for partition of property held as tenants by the entireties, the trial
court erred in ordering partition of the marital residence prior to the final
judgment of dissolution.
We also agree with the wife’s alternative argument on appeal that the
trial court’s order fails to comply with section 64.061(4), Florida Statutes
(2021), because the order does not appoint a special magistrate or the clerk
of court to conduct the sale, nor does it order a judicial sale in compliance
with section 64.071, Florida Statutes (2021). See § 64.061(4), Fla. Stat.
(2021); Marks,
160 So. 3d at 507 (“Absent the parties’ agreement, resort
to a private sale as a means of selling the property in a partition action is
disapproved.”); Weider v. Weider,
402 So. 2d 66, 68 (Fla. 4th DCA 1981)
(reversing a partition final judgment for failure to follow the sale procedure
authorized by Chapter 64). However, this issue is moot, given our reversal
on the grounds the property cannot be partitioned prior to dissolution of
the marriage.
Conclusion
For the reasons stated above, we reverse the order granting a partition
sale of the marital home property prior to the marriage being dissolved,
4
direct the trial court to vacate the order, and remand for further
proceedings consistent with this opinion.
Reversed and remanded for further proceedings.
GERBER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
5
