Mossel v. Mossel

LETTS, Chief Judge. In the Final Judgment of Dissolution of Marriage rendered in 1977, the wife was given sole use of the marital home for an unspecified period of time subject to the right of partition at a later date. No appeal was taken from that judgment. In 1981, the husband filed a complaint for partition and the court struck two paragraphs of the wife’s affirmative defenses thereto and dismissed her counterclaim. The order gave her twenty days within which to amend. She now appeals that order. An order dismissing a complaint with leave to amend is a non-appealable non-final order Petnuch v. Smith, 395 So.2d 294 (Fla. 5th DCA 1981). We therefore dismiss this appeal. However, we pause to announce that even on the merits we would affirm. The wife here seeks a fresh determination of her right to alimony and a special equity. These issues cannot be raised in a partition suit after the entry of a non-appealed final judgment of dissolution Craig v. Craig, 404 So.2d 413 (Fla. 4th DCA 1981), Cribb v. Cribb, 261 So.2d 566 (Fla. 4th DCA 1972). Likewise, the counterclaim was similarly correctly dismissed since it seeks a special equity and/or lump sum alimony award. APPEAL DISMISSED. HURLEY and WALDEN, JJ., concur.