Nelson v. Nelson, 544 So. 2d 273

NIMMONS, Judge.

The parties were divorced in 1976 and the appellee was awarded the use and occupancy of the marital home with a proviso that such occupancy would terminate upon her remarriage. Appellee remarried in 1979 but she continued to reside in the home.

In April 1988, appellant filed a partition suit. In this appeal from the final judgment of partition, appellant asserts error in the trial court’s failure to grant appellant an offset in the amount of ½ of the reasonable rental value of the property against the award to appellee for ½ of appellee’s maintenance and improvement expenses and ½ of the mortgage payments made by the appellee since the entry of the final judgment of dissolution.

We recognize the holding in Barrow v. Barrow, 527 So.2d 1373 (Fla.1988) that (absent a continuing award of exclusive possession) a cotenant out of possession is entitled to claim the reasonable rental value of the property as an offset against the claim of the cotenant in possession for amounts expended in the improvement of the property. However, the record in this case fails to show the reasonable rental value of the property. The appellant, having failed to present evidence from which such value may be determined, is not entitled to complain of the partition judgment’s failure to provide for the offset.

AFFIRMED.

BARFIELD and MINER, JJ., concur.

Case Details

Case Name: Nelson v. Nelson

Court Name: District Court of Appeal of Florida

Date Published: May 23, 1989

Citations: 544 So. 2d 273; 14 Fla. L. Weekly 1260; 1989 Fla. App. LEXIS 2816; 1989 WL 52829; No. 88-1982

Docket Number: No. 88-1982

Court Abbreviation: Fla. Dist. Ct. App.