Smith v. Smith

PEARSON, TILLMAN, Chief Judge

(dissenting in part).

The majority opinion recognizes the “considerable force” of appellant’s point which challenges the award of possession of the marital home to the wife, but nevertheless upholds that portion of the chancellor’s decree which made such award. I respectfully dissent from this portion of the majority opinion, and it is my view that this award should be reversed and the cause remanded for a reassessment of alimony.

In this connection it should be noted that the record reveals (1) the marriage, of six and one-half years was childless; (2) the husband is 71, the wife 65; (3) the three-bedroom, two-bath residence was paid for *450entirely by the husband and title is in his name; and (4) the estate of the husband is small. An examination of Randall v. Randall, 158 Fla. 502, 29 So.2d 238 demonstrates its inapplicability to this situation.

The discretion of a chancellor in property matters, as in other matters, must be exercised in accordance with established principles of equity. Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241, 247; Ellard v. Godwin, Fla. 1955, 77 So.2d 617; McWhorter v. McWhorter, Fla.App.1960, 122 So.2d 504.