Full Opinion

Third District Court of Appeal State of Florida Opinion filed April 1, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-1646 Lower Tribunal No. 10-8933 ________________ Peter Martinez-Noda, Appellant, vs. Zurami Pascual, Appellee. An appeal from the Circuit Court for Miami-Dade County, Abby Cynamon, Judge. Davis Smith & Jean, LLC, and Sonja A. Jean, and Laura Davis Smith, for appellant. Perez-Abreu & Martin-Lavielle, P.A., and Andy W. Acosta and Javier Perez- Abreu, for appellee. Before FERNANDEZ, LOGUE, and MILLER, JJ. MILLER, J. Appellant, Peter Martinez-Noda, the former husband, challenges a final decree partitioning certain real property consisting of the marital residence and accompanying lands. On appeal, Martinez-Noda contends the lower tribunal erred both in effecting partition and failing to consider credits prior to apportioning the proceeds derived from the court-ordered sale. We affirm the well-reasoned judgment under review in all respects, save the allocation of proceeds clause. Martinez-Noda and his former wife, appellee, Zurami Pascual, held the relevant property as tenants by the entireties for the duration of their union. In early 2010, Pascual filed for dissolution. Contentious litigation ensued and, later that year, the parties negotiated a marital settlement agreement. Under the terms of the agreement, Pascual was required to transfer her ownership interest in the property to Martinez-Noda after he satisfied multiple promissory notes, payable to a third-party acquaintance. The trial court ratified the agreement and dissolved the marriage. Following the dissolution, Martinez-Noda filed for bankruptcy protection, seeking relief from his outstanding obligation under the promissory notes. The obligee accelerated the notes and declared a default. Thereafter, Martinez-Noda received a discharge of the remaining debt. Pascual reopened the dissolution proceeding, concomitantly filing a petition to partition the property. The lower tribunal granted partition, specifying that the proceeds of the court-ordered sale first be applied to satisfy an outstanding mortgage, 2 and then any remaining funds “distributed equally (50/50) to each party.” The instant appeal followed. As “the power of the trial court to deny partition should be invoked only in extreme cases, where otherwise manifest injustice, fraud or oppression would result if the remedy were granted,” we affirm the propriety of the judgment under review without further elaboration. Sudholt v. Sudholt, 389 So. 2d 301, 302 (Fla. 5th DCA 1980); see Lashkajani v. Lashkajani, 911 So. 2d 1154, 1159 (Fla. 2005) (“Although contract principles play a role in dissolution proceedings, courts must remember that ‘proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law.’”) (quoting Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997)); Green v. Green, 16 So. 3d 298, 301 (Fla. 1st DCA 2009) (“Partition principles are flexibly applied in order to arrive at a fair, equitable, and just decree.”) (citation omitted). However, adhering to the adage “equality is equity,” the preordained distribution of the proceeds of the sale warrants further discussion. Tompkins v. Wheeler, 41 U.S. 106, 116, 10 L. Ed. 903 (1842). “Upon dissolution of marriage, the tenants of an estate by the entirety become tenants in common.” McCarthy v. McCarthy, 922 So. 2d 223, 226 (Fla. 3d DCA 2005) (citation omitted). Tenants in common bear “equal responsibility in making all payments necessary to maintain their ownership of the property.” Kelly v. Kelly, 583 So. 2d 667, 668 (Fla. 1991). Thus, each co-tenant is ultimately liable for his or 3 her proportionate share of the “taxes, mortgage payments, insurance and maintenance and repair.” McCarthy, 922 So. 2d at 226. Accordingly, upon partition, a tenant shouldering a disproportionate responsibility for those obligations “is entitled to credit from the proceeds of the sale for the other co-tenant’s proportionate share of those expenses.” Id. (citation omitted). Here, the final judgment of dissolution left the former spouses tenants in common. Thus, each bore equal responsibility for maintaining the property. Because Martinez-Noda asserted he alone paid the taxes and mortgage payments for nearly a decade, the trial court was charged with impounding “the fund consisting of the proceeds of sale and conduct[ing] proceedings to establish the credits due to the parties and to determine the final amount awarded to each.” McFall v. Trubey, 992 So. 2d 867, 870 (Fla. 2d DCA 2008) (citation omitted); see also Kelly, 583 So. 2d at 668 (The former wife was “entitled to reimbursement for one-half the full mortgage payments.”); Green, 16 So. 3d at 300 (Where one “pays all of the mortgage payments, that party is entitled to credit for payment of the other party’s share when the house is sold.”) (citations omitted); Schroeder v. Lawhon, 922 So. 2d 285, 296 (Fla. 2d DCA 2006) (“As cotenants of the property, the parties each had an obligation to pay their proportionate share of the obligations and expenses of the property, including the real estate taxes.”) (citations omitted). 4 Accordingly, we affirm in part, reverse in part, and remand for the presiding tribunal to determine whether an adjustment of the equities is warranted. Affirmed in part; reversed in part; and remanded. 5