         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


GUILLERMO SALAZAR,

              Appellant,

v.                                                       Case No. 5D15-2065

CLAUDIA M. GIRALDO,

              Appellee.

________________________________/

Opinion filed May 6, 2016

Appeal from the Circuit Court
for Lake County,
Mark J. Hill, Judge.

Jeffrey A. Conner, Winter Garden,
for Appellant.

Brian M. Monk, of Boyette, Cummins
& Nailos, PLLC, Clermont, for Appellee.


PER CURIAM.

       Guillermo Salazar (“Former Husband”) appeals the amended final judgment

dissolving his marriage to Claudia M. Giraldo (“Former Wife”) following trial. Former

Husband raises five issues. We agree with Former Husband that the trial court erred in

failing to consider whether he is entitled to credits or setoffs for his payment of certain

expenses incurred in maintaining the former marital home, owned by the parties,

pending the sale of the home. We affirm on all other issues without further discussion.
       The amended final judgment directed that the former marital home be

immediately placed on the market by the parties and listed for sale at a mutually

agreeable price, provided that if the parties could not agree on a price, then the home

would be listed at a “reasonable” price as determined by a qualified real estate

professional. Upon the sale of the home, the parties were to equally divide the net

proceeds. Pending sale, Former Husband was awarded exclusive use and possession

of the home and was ordered to pay: (1) the monthly mortgage payment; (2) the real

estate taxes; and (3) “all other financial obligations pertaining to the home until the

home sells.” Former Husband was also directed to keep the home in a “show-ready

condition” until it sells.

       Former Husband argues that the trial court erred in failing to award him credits or

reimbursements from the sale proceeds resulting from his payment of Former Wife’s

share of the aforementioned expenses associated with the former marital home.

Section 61.077, Florida Statutes (2015), provides:

                      A party is not entitled to any credits or setoffs upon
               the sale of the marital home unless the parties’ settlement
               agreement, final judgment of dissolution of marriage, or final
               judgment equitably distributing assets or debts specifically
               provides that certain credits or setoffs are allowed or given at
               the time of the sale. In the absence of a settlement
               agreement involving the marital home, the court shall
               consider the following factors before determining the issue of
               credits or setoffs in its final judgment:

                      (1) Whether exclusive use and possession of the
               marital home is being awarded, and the basis for the award;

                      (2) Whether alimony is being awarded to the party in
               possession and whether the alimony is being awarded to
               cover, in part or otherwise, the mortgage and taxes and
               other expenses of and in connection with the marital home;




                                              2
                [I]n my view, a specific pleading for partition of the marital
                home should not be required for a trial court to dispose of
                that home. Given the equitable distribution statute, section
                61.075, Florida Statutes (2013), and the fact that, in many
                cases, the marital home is the only asset of significant value,
                the requirement is outdated and unnecessary. . . . In
                situations where a trial court is likely to order the sale or
                other distribution of the marital home, the parties have been
                unable to resolve the issue of ownership of the homestead
                and accompanying debt and are in need of the trial court’s
                intervention. No one is surprised when the court does so as
                part of the equitable distribution scheme.

128 So. 3d at 191 (Cohen, J. concurring)4 (citation omitted); see also Riley v. Edwards-

Riley, 963 So. 2d 829, 830–31 (Fla. 3d DCA 2007) (holding that the equitable

distribution statute renders it “no longer necessary to seek partition as part of a

dissolution action to divide or distribute a parcel of property owned by a husband and a

wife”). In the present case, no one should have been surprised that the marital home

needed to be sold to facilitate and accomplish the equitable distribution of all of the

parties’ marital assets and marital liabilities.




       4   Then Chief Judge Torpy joined in Judge Cohen’s concurring opinion.


                                               10
      On remand, the trial court may take additional evidence on this issue as

necessary.

      AFFIRMED, in part; REVERSED, in part; and REMANDED for further

proceedings.

ORFINGER and EDWARDS, JJ., concur.
LAMBERT, J., concurs, with opinion.




                                      4
LAMBERT, J., concurring.                                                      5D15-2065


       I concur with the opinion of the court, but write to address Former Husband’s

argument that the trial court erred in ordering the sale of the parties’ marital home.

       In June 2014, Former Husband filed a petition for dissolution of marriage.

Pertinent to this appeal, Former Husband alleged that, during the course of their

marriage, the parties had acquired certain assets and liabilities, including the marital

home, and he requested that these assets and liabilities be equitably distributed by the

court. Former Husband did not specifically allege in his petition that the marital home

should be distributed solely to him. Former Wife timely answered the petition in which

she agreed that the parties had acquired marital assets and liabilities that should be

equitably distributed.

       On December 1, 2014, the court entered an order setting the case for a pretrial

conference. Pursuant to this order, both parties were ordered to file pretrial compliance

statements in which each party was to list for the court the assets and debts to be

divided, the value of each asset, and the proposed distribution of each asset and

liability. The parties filed their respective pretrial memoranda; however, neither party

provided to the court their proposed disposition of the marital home. Thus, at this point

in the litigation, neither party had filed a pleading or document seeking either the sale of

the marital home or the specific distribution of the home to one party or the other.

       Following the pretrial conference, the court entered an order scheduling trial for

early March 2015. Shortly before trial, Former Wife changed counsel. Former Wife’s

new counsel moved for a continuance of the trial and separately moved for leave to

amend Former Wife’s answer and to file a counterpetition for dissolution of marriage.



                                             5
Former Wife attached to her motion a copy of the proposed amended answer and

counterpetition. Among other things, Former Wife now pleaded for the former marital

home to be sold and that the net sale proceeds be equally divided between the parties.

Former Husband promptly filed a response, objecting to both Former Wife’s motion for

continuance and her request for leave to amend. Notably, Former Husband did not

state how he would be prejudiced by the amendment, but only that he would be

prejudiced by the continuance due to the additional costs that he would incur.

       Neither party secured a ruling from the court prior to trial on Former Wife’s

motion to file an amended pleading. The trial, however, was not continued. During the

trial, Former Wife orally reiterated her pretrial request for leave to amend her pleadings

for the marital home to be sold and the net sale proceeds divided equally. At the

conclusion of the trial, the court provided the parties with the opportunity to file written

closing arguments. In his closing argument, Former Husband requested that the court

distribute the marital home and the indebtedness on the home to him. Former Husband

suggested that, if the court granted his requested relief and further agreed with the

values he attributed to the marital assets and liabilities and his proposed distribution of

these assets and liabilities, the court should also order him to pay to Former Wife the

sum of $15,648.50 to balance the distribution of the assets and liabilities.

       In her closing argument, Former Wife requested that the marital home be sold

and that the net proceeds from the sale be equally divided between the parties. Former

Wife argued that Florida Rule of Civil Procedure 1.190(b)1 provided the court with the



       1   Florida Rule of Civil Procedure 1.190(b) provides in pertinent part:




                                               6
authority to order this sale by allowing her pleadings to be amended to conform to the

evidence at trial. The trial court agreed with Former Wife and, in the amended final

judgment, granted her motion to amend her pleadings to conform with the evidence,

and it ordered that the marital home be sold and the net sale proceeds equally divided.

      On appeal, Former Husband first argues that the trial court erred in ordering the

sale of the marital home because the issue of the partition and sale of the marital home

was not tried by the express or implied consent of the parties as evidenced by his

objections at trial to testimony on this issue. See Todaro v. Todaro, 704 So. 2d 138,

139–40 (Fla. 4th DCA 1997) (finding issues were not tried by implied consent where

wife objected at hearing). Second, Former Husband contends that this court’s recent

opinions in Richeson v. Richeson, 170 So. 3d 842 (Fla. 5th DCA 2015), and Hodges v.

Hodges, 128 So. 3d 190 (Fla. 5th DCA 2013), in which we held that the trial courts erred

in directing the sale of marital real property, absent a pleading seeking partition of the

property, compels reversal. Neither argument is persuasive.

      Partition actions are governed by chapter 64 of the Florida Statutes. Section

64.041, Florida Statutes (2015), provides that a complaint in partition “shall allege a

______________________

             (b) Amendments to conform with the Evidence. When
             issues not raised by the pleadings are tried by express or
             implied consent of the parties, they shall be treated in all
             respects as if they had been raised in the pleadings. . . . . If
             the evidence is objected to at the trial on the ground that it is
             not within the issues made by the pleadings, the court may
             allow the pleadings to be amended to conform with the
             evidence and shall do so freely when the merits of the cause
             are more effectually presented thereby and the objecting
             party fails to satisfy the court that the admission of such
             evidence will prejudice the objecting party in maintaining an
             action or defense upon the merits.



                                            7
description of the lands of which partition is demanded, the names and places of

residence of the owners . . . or other persons interested in the lands[,] . . . the quantity

held by each, and such other matters, if any, as are necessary to enable the court to

adjudicate the rights and interests of the party.”

       Although Former Wife did not couch her request for the sale of the marital home

as a separate cause of action for partition, she did aver in her counterpetition that the

parties acquired the marital home during their marriage, that each owned an equal

interest in the real property, provided in this pleading both the legal description and the

parcel tax identification number for the property, and essentially requested that the

marital home be listed for sale and the net sale proceeds be distributed equally between

the parties. I see no meaningful difference between the statutory pleading requirements

of a partition action and the allegations contained in Former Wife’s pleading. To me,

Former Wife’s pleading substantially complied with section 64.041.2          Cf. Savage v.

Savage, 556 So. 2d 1213, 1214 (Fla. 2d DCA 1990) (finding that husband’s plea for

partition in his complaint, though lacking a legal description of the property, substantially

complied with section 64.041, and that it should have been granted).

       The court acted well within its discretion by allowing the amendment to Former

Wife’s pleading under rule 1.190(b) because Former Husband has not shown how he

was prejudiced in presenting his case or how the merits of the case were not more

effectively presented by allowing the amendment. See Musso v. Musso, 670 So. 2d

122 (Fla. 4th DCA 1996) (affirming the trial court’s order of partition because the



       2 In her proposed counterpetition, Former Wife did not allege the parties’ places
of residence. The evidence at trial established that Former Husband was residing in the
marital home.


                                              8
appellant failed to show that the trial court abused its discretion in allowing the

amendment under rule 1.190(b)). Moreover, if, in the amended final judgment, the

court, rather than permitting the amendment to Former Wife’s pleading pursuant to rule

1.190(b) to conform with the evidence at trial, had simply granted Former Wife’s pretrial

motion to amend her pleadings, then Former Husband’s apparent concern regarding the

lack of a sufficient pretrial pleading from Former Wife would have been alleviated.

       The need to sell the marital home to achieve an equal and, in this case, an

equitable distribution of the parties’ marital assets and liabilities was cogently

recognized by the trial court. If we were to agree with Former Husband and reverse this

case with directions that the trial court distribute the marital home and its indebtedness

to him, then, based on the values of the parties’ other assets and liabilities as

determined by the court in the amended final judgment,3 in order for the court to achieve

a true equitable distribution, the other assets previously distributed to Former Husband

would now have to be distributed to Former Wife. The court would have to redistribute

Former Husband’s car and his 401(k) to Former Wife and Former Wife’s credit card

liability would have to be redistributed to Former Husband.            Furthermore, Former

Husband would still be required to pay Former Wife a cash sum, albeit less than

suggested by Former Husband in his closing argument, to achieve an equal, 50/50

division of the marital assets and liabilities. Resolving this case in such a manner

makes little sense.

       Finally, I agree with Judge Cohen’s concurring opinion in Hodges where he

wrote, in pertinent part:



       3   These valuations have not been challenged in this appeal.


                                             9
                [I]n my view, a specific pleading for partition of the marital
                home should not be required for a trial court to dispose of
                that home. Given the equitable distribution statute, section
                61.075, Florida Statutes (2013), and the fact that, in many
                cases, the marital home is the only asset of significant value,
                the requirement is outdated and unnecessary. . . . In
                situations where a trial court is likely to order the sale or
                other distribution of the marital home, the parties have been
                unable to resolve the issue of ownership of the homestead
                and accompanying debt and are in need of the trial court’s
                intervention. No one is surprised when the court does so as
                part of the equitable distribution scheme.

128 So. 3d at 191 (Cohen, J. concurring)4 (citation omitted); see also Riley v. Edwards-

Riley, 963 So. 2d 829, 830–31 (Fla. 3d DCA 2007) (holding that the equitable

distribution statute renders it “no longer necessary to seek partition as part of a

dissolution action to divide or distribute a parcel of property owned by a husband and a

wife”). In the present case, no one should have been surprised that the marital home

needed to be sold to facilitate and accomplish the equitable distribution of all of the

parties’ marital assets and marital liabilities.




       4   Then Chief Judge Torpy joined in Judge Cohen’s concurring opinion.


                                               10
