Massey v. Massey, No. 85-916

No. 85-916 | Fla. Dist. Ct. App. | Nov 13, 1985

SCHEB, Acting Chief Judge.

Huston L. Massey, the husband, appeals from a final judgment of dissolution of marriage. He limits his challenge to the trial court’s award of $50 per week permanent alimony to the wife. His point is meritorious.

In her petition for dissolution the wife did not request permanent alimony, or alimony of any kind. At the dissolution hearing, she did not ask to amend her pleadings to request alimony, nor did the parties try the issue by consent. Therefore, the award was improper. See Cooper v. Cooper, 406 So. 2d 1223" court="Fla. Dist. Ct. App." date_filed="1981-12-02" href="https://app.midpage.ai/document/cooper-v-cooper-1092570?utm_source=webapp" opinion_id="1092570">406 So.2d 1223 (Fla. 4th DCA 1981); James v. James, 374 So. 2d 1085" court="Fla. Dist. Ct. App." date_filed="1979-08-28" href="https://app.midpage.ai/document/james-v-james-1132845?utm_source=webapp" opinion_id="1132845">374 So.2d 1085 (Fla. 5th DCA 1979).

The wife correctly points out that the final judgment awarded the husband the use and possession of the marital home while directing that the parties would remain tenants in common of the property. Nevertheless, we reject her contention that the trial court awarded her the permanent alimony to offset the husband’s use and possession of the marital home.

Accordingly, we reverse and remand to the trial court to vacate the award of permanent alimony. On remand, the trial judge should set a definite time frame for the husband’s use and possession of the home pending sale. Otherwise, we affirm the final judgment.

CAMPBELL and HALL, JJ., concur.