DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MYRA BLEW,

Appellant,

v.

MICHAEL BLEW,

Appellee.

No. 4D22-2127

[March 29, 2023]

Appeal of nonfinal order from the Circuit Court for the Nineteenth 

Judicial Circuit, Martin County; Brett M. Waronicki, Judge; L.T. Case No. 

43-2021-DR-000805.

L. Lisa Batts of Stuart Law Group, P.A., Stuart, for appellant.

Stacy N. Beaulieu-Fawcett of the Beaulieu-Fawcett Law Group, P.A., 

Delray Beach, for appellee.

CONNER, J.

In this nonfinal appeal, the wife seeks to reverse a trial court order 

granting the husband’s motion for summary judgment in a pending 

dissolution of marriage action, granting partition of the marital home, and 

requiring the sale of the marital home prior to dissolving the marriage. 

Because Florida law does not permit partition of property held as tenants 

by the entireties while the parties are married, we reverse and remand for 

further proceedings.

Background

The wife petitioned for dissolution of marriage, asserting a count for 

partition of the marital residence, which the parties owned as tenants by 

the entireties. The husband answered and counter-petitioned for 

dissolution of marriage, also asserting a count for partition. While other 

aspects of the dissolution action were still being litigated, the husband 

moved for summary judgment, seeking partition prior to the final 

dissolution hearing.
2

At the summary judgment hearing, the wife argued the motion should 

be denied because, as a matter of law, no right to partition existed prior to 

entry of a final judgment. The wife pointed out that the husband could 

have sought an interim partial distribution under section 61.075(5), 

Florida Statutes (2021), upon a showing of “extraordinary circumstances,” 

but he had not. The wife further argued disputed facts existed regarding 

her property interest in the home and use of the home for her support.

The husband argued summary judgment was appropriate because both 

parties were seeking the same relief. Further, he argued that he asserted 

good cause for immediate sale by showing that the wife was running a 

business out of the home while not contributing to any of the household 

expenses.

The trial court found no genuine issue of material fact concerning the 

partition, as each side was requesting the same relief. The trial court 

explained this was not an interim partial distribution of the home’s value,

as the distribution issue remained to be determined. The trial court also 

explained that the wife’s preference to remain in the home until a 

temporary relief hearing was conducted did not create a genuine dispute

of facts. Accordingly, the trial court granted summary judgment, and 

ordered the property be immediately listed for sale and both parties to 

cooperate with the sale. The trial court further ordered counsel to retain 

the sale proceeds in an escrow account until further order.

Appellate Analysis

Identical to the corresponding rule of civil procedure, Florida Family 

Law Rule of Procedure 12.510(a) gives the standard for granting summary 

judgment in family cases: “The court shall grant summary judgment if the 

movant shows that there is no genuine dispute as to any material fact and 

the movant is entitled to judgment as a matter of law.” Fla. Fam. L. R. P. 

12.510(a). Summary judgment is proper “if there is no genuine issue of 

material fact and if the moving party is entitled to a judgment as a matter 

of law.” Menendez v. Palms W. Condo. Ass’n, 736 So. 2d 58, 60 (Fla. lst 

DCA 1999). The standard of review on a motion for summary judgment is 

de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 

126, 130 (Fla. 2000).

Our research revealed no Florida caselaw permitting a partition sale of 

a marital home owned as tenants by the entireties prior to the entry of 

final judgment dissolving the marriage of the owners. Nor have we 

identified any caselaw pertaining to a court-ordered partition prior to entry 

of a final dissolution judgment, where both parties agreed to the partition 
3

in the pleadings. However, numerous cases discuss partition ordered in a 

final dissolution judgment or thereafter. See, e.g., Salazar v. Giraldo, 190 

So. 3d 248, 248 (Fla. 5th DCA 2016); Coristine v. Coristine, 53 So. 3d 1204, 

1204 (Fla. 5th DCA 2011); Anderson v. Anderson, 424 So. 2d 943, 944

(Fla. 5th DCA 1983); Zeller v. Zeller, 396 So. 2d 1177, 1178 (Fla. 4th DCA 

1981).

“Actions for partition are based in equity and are governed by chapter 

64, Florida Statutes[.]” Marks v. Stein, 160 So. 3d 502, 506 (Fla. 2d DCA 

2015) (citing § 64.011 Fla. Stat. (2013)); see also Willard v. Willard, 145 

U.S. 116, 120-21 (1892) (recognizing that partition actions were 

authorized by English statutes dating back to the reign of Henry VIII). In 

dissolution of marriage actions, “[t]o justify partition one of the parties 

must plead a right thereto in accordance with Chapter 64[.] A [general] 

prayer for a division of the property of the parties is insufficient.” Niemann 

v. Niemann, 294 So. 2d 415, 416 (Fla. 4th DCA 1974); see also Zeller, 396 

So. 2d at 1178 (holding that dissolution petition request that the parties’ 

joint property be “adjusted and determined” was insufficient to grant

partition); Poitier v. Poitier, 458 So. 2d 428, 428 (Fla. 3d DCA 1984)

(reversing a judgment partitioning tenancy by the entireties property “in 

the absence of an appropriate request and compliance with the 

requirements of Chapter 64, Florida Statutes”). The requirement of a 

pleading pursuant to Chapter 64 “is no idle whim since partition involves 

certain rights, such as the right to partition in kind, a determination of the 

respective interests of the parties in the property, and the proper 

distribution of the proceeds from a sale.” Zeller, 396 So. 2d at 1178. The 

record is clear that both parties filed petitions seeking partition of the 

marital home.1

Because partition is a statutory remedy in Florida, the statutory 

provision explaining who may bring a partition action against whom is 

controlling. Section 64.031, Florida Statutes (2021), states: “The action 

may be filed by any one or more of several joint tenants, tenants in common, 

or coparceners, against their cotenants, coparceners, or others interested

in the lands to be divided.” § 64.031, Fla. Stat. (2021) (emphasis added). 

Additionally, section 64.051, Florida Statutes (2021), which addresses 

partition judgments, provides: “The court shall adjudge the rights and 

interests of the parties, and that partition be made if it appears that the 

parties are entitled to it.” § 64.051, Fla. Stat. (2021) (emphasis added). 

1 The husband’s dissolution petition specifically cited Chapter 64 as the basis for 

his partition request. The wife did not reference any statute. But, because 

partition is a statutory remedy, we construe her request to be pursuant to 

Chapter 64 as well.
4

The plain language of sections 64.031 and 64.051 makes clear that a 

partition judgment may be entered in favor of a joint tenant, tenant in

common, or coparcener against a joint tenant, tenant in common, or 

coparcener. We find nothing in Chapter 64 that authorizes a tenant by the 

entireties to seek a partition of property jointly owned by his or her spouse.

Florida caselaw has long held that property held by spouses as tenants 

by the entireties is not subject to partition. See Hunt v. Covington, 200 So. 

76, 77 (Fla. 1941). That is because a tenancy by the entireties is “an estate 

over which the husband and wife have absolute disposition and as to 

which each, in the fiction of law, holds the entire estate as one person.” Id.

(emphasis added); see also Logan Moore Lumber Co. v. Legato, 131 So. 381, 

382 (Fla. 1930) (“An estate by the entireties is vested in husband and wife 

as one person . . . it cannot ordinarily be partitioned during their joint 

lives[.]”). Thus, as a matter of law, partition is designed to provide a 

remedy where two or more persons have separate, and sometimes 

unequal, joint ownership interests in real property, but no logical reason 

for the remedy exists in the context of a single unit of ownership.

In the instant case, both parties petitioned to partition the marital home 

which they owned as tenants by the entireties. However, because Chapter 

64 governs partitions, and because sections 64.031 and 64.051 do not 

allow for partition of property held as tenants by the entireties, the trial 

court erred in ordering partition of the marital residence prior to the final 

judgment of dissolution.

We also agree with the wife’s alternative argument on appeal that the 

trial court’s order fails to comply with section 64.061(4), Florida Statutes 

(2021), because the order does not appoint a special magistrate or the clerk 

of court to conduct the sale, nor does it order a judicial sale in compliance 

with section 64.071, Florida Statutes (2021). See § 64.061(4), Fla. Stat.

(2021); Marks, 160 So. 3d at 507 (“Absent the parties’ agreement, resort 

to a private sale as a means of selling the property in a partition action is 

disapproved.”); Weider v. Weider, 402 So. 2d 66, 68 (Fla. 4th DCA 1981) 

(reversing a partition final judgment for failure to follow the sale procedure 

authorized by Chapter 64). However, this issue is moot, given our reversal 

on the grounds the property cannot be partitioned prior to dissolution of 

the marriage.

Conclusion

For the reasons stated above, we reverse the order granting a partition 

sale of the marital home property prior to the marriage being dissolved, 
5

direct the trial court to vacate the order, and remand for further 

proceedings consistent with this opinion.

Reversed and remanded for further proceedings.

GERBER and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.