FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Holmes County Christopher
N. Patterson, Judge.
Adkison, Chipley, for Appellant.
Y. Roberts of Roberts, Roberts & Roberts, Marianna, for
dissolution-of-marriage appeal, we reverse the trial
court's award of past-due rent, but we affirm the trial
court's decision as to the majority time-sharing of the
parties' minor child.
their dissolution proceedings began, Chris and Darlene
Hudson-then husband and wife-entered into a partial mediated
settlement agreement. Among other things, the agreement
provided that the wife "shall assume the exclusive
ownership and possession of the marital home." But
despite the agreement, the husband continued to live with her
in the marital home nearly four more years-all the way up
until the final dissolution hearing.
final hearing, the wife asked the court to award her rent for
the time the husband continued to live in the home. She
testified that she had repeatedly asked him to move out, but
that he had repeatedly refused. She said she had even turned
to law enforcement seeking his removal, but to no avail.
Testifying in response, the husband admitted he lived in the
home but said she never asked him to leave. He insisted he
owed no rent.
final judgment, the court held that the wife was
"entitled to an award of reasonable rent" for the
time the husband "resided in the home over [her]
objection." Accordingly, the court ordered the husband
to pay the wife $23, 500 ($500 per month x 47
months[*]) in four quarterly
appeal, the husband argues that the trial court never should
have considered the rent issue because the wife failed to
properly plead it. He correctly notes that the issue was not
even raised until six days before the final hearing, when the
wife filed an amended financial affidavit listing as a
contingent asset the $23, 500 in "[r]ent owed." In
a dissolution-of-marriage case, "an issue is properly
before the court when it is raised in the pleadings or when
it is raised and considered by the court without
objection." Clark v. Clark, 147 So.3d 655, 657
(Fla. 5th DCA 2014). Here, the wife never amended her
petition to include a specific request for past-due rent, and
her amendment to the financial affidavit was insufficient to
put the issue before the court. Cf. id. at 657-68
("Wife contends that the issues of alimony and
attorney's fees were listed in her pre-trial compliance
putting Husband on notice. However, this document is not a
substitute for amending the complaint."). Therefore, the
trial court could consider the issue only if it was tried by
express or implied consent. See id.; cf. also
Burkhart v. Burkhart, 620 So.2d 225, 226 (Fla. 1st DCA
1993) (holding that trial court erred in awarding wife
temporary spousal support because the wife's motion
"contain[ed] no request for spousal support, nor [was]
there any indication that the wife's entitlement to same
was tried by consent of the parties").
the wife argues otherwise with some force, we are unconvinced
that the rent issue was tried by consent. But we need not
ultimately resolve that issue. Either way, the trial court
should not have awarded rent. The wife's only argument in
support of her entitlement to unpaid rent was based on the
parties' settlement agreement, but that agreement does
not obligate the husband to pay rent for the time he was
there. While there are conceivable arguments supporting a
damages award under these circumstances, cf., e.g.,
Kish v. McDonald's Corp., 564 So.2d 1177, 1180
(Fla. 4th DCA 1990) ("[R]easonable rental value . . . .
is a proper measure of damages where a trespass has occurred
and the trespasser has refused to remove itself after
notification by the owner."), the wife did not raise
them. On remand, the trial court should amend the final
judgment to remove the $23, 500 award.
the husband argues that the trial court erred in awarding the
wife majority time-sharing of the parties' minor child.
He argues that there was insufficient evidence to support the
trial court's decision. We conclude, however, that the
trial court properly considered all the necessary factors,
relied on sufficient evidence, and did not abuse its broad
discretion. Cf. Miller v. Miller, 842 So.2d 168, 169
(Fla. 1st DCA 2003) ("It is well settled that a trial