
    Robert J. LEE, Appellant, v. James R. LEE, et al., Appellees.
    No. 83-562.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 1983.
    Joseph E. Foster of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    Donald R. Corbett, Orlando, for appellee O.N.L., Inc.
    
      Frank M. Townsend of Townsend & Townsend, Kissimmee, for appellee James R. Lee.
    No appearance for appellees Laura Lee Hill and Hildred H. Lee.
   PER CURIAM.

The appealed partition sale order directed the sale as one unit of eleven parcels of land, title to which is held by five owners. Three of the owners, James R. Lee, Laura Lee Hill and O.N.L., Inc., each have the exact same fractional interest in each parcel and their interests total one-half. The other half interest is owned by appellant Robert Lee and Hildred Lee. Robert and Hildred are husband and wife but their interests are not equal or the same as to every parcel. In five parcels Robert individually owns an undivided one-third interest and Robert and Hildred jointly own a one-sixth interest. In three parcels Robert and Hildred jointly own an undividied one-half interest. In the remaining three parcels Robert individually owns a one-half interest and Hildred has no interest. Some of the parcels are citrus groves and are contiguous, other grove parcels are not contiguous, while still other parcels are drainage canals that serve the grove parcels.

The problem is that in order for the partition sale proceeds to be divided between Robert and Hildred exactly in accordance with the individual or joint interest of each, the eleven parcels must be sold separately or at least in three sales grouped five parcels, three parcels and three parcels in accordance with the three different ways Robert and Hildred hold interests. On the other hand the other three owners argue that separate sales may force bidders on the grove parcels to pay exorbitant prices for the canal parcels which may stifle bidding on the grove parcels to the detriment of nonpurchasing owners.

The trial court ordered all parcels to be sold as one unit and one-half of the proceeds to be distributed jointly to Robert and Hildred.

This solution and the order of sale awards Hildred an interest in property rights owned by Robert individually and fails to recognize that under Article X, section 5 of the Florida Constitution, section 708.08 Florida Statutes (1981), and case law, see Palumbo v. Palumbo, 439 So.2d 232 (Fla. 5th DCA 1983); McClung v. McClung, 427 So.2d 350 (Fla. 5th DCA 1983); Holland v. Holland, 406 So.2d 496 (Fla. 5th DCA 1981); Hughes v. Russell, 391 So.2d 256 (Fla. 4th DCA 1980), married men and married women can own, hold, control, dispose of or encumber separate property without the consent or joinder of a spouse and without a spouse having any right, title or interest in such separate property. Accordingly, the order of sale is erroneous and is reversed and the cause is remanded with directions that the trial court direct the distribution of sale proceeds in accordance with the respective interest of each party.

REVERSED AND REMANDED with directions.

ORFINGER, C.J., and DAUKSCH, J., concur.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

Although the trial court could possibly estimate the value of each individual parcel with respect to the whole from opinion testimony taken after a single unit sale, I suggest the problem in this case is capable of a fair, equitable and practical solution that should allay the fears and satisfy the needs and desires of all parties. The parcels can be “sold” both separately and as one unit and, also, in any number of combination of parcels that their relationships suggest or the parties desire. This is done by advising bidders that the parcels will be first exposed for sale separately, then in any group or groups the court may specify and, lastly, as a single unit. The auction commences and the highest bid (offer) for each separate parcel is noted. Then the highest bid for each specified group or combination is noted. Lastly, the highest single unit bid is noted. The bid or bid group bringing the most money is accepted as the winning bid or bids. If the single unit bid (or any combination bid other than the 5-3-3 parcel combination in which Robert and Hildred have consistent interests) is the accepted bid, each separate parcel high bid (or the total of the separate bids of each of the 5-3-3 groups) can be divided by the total of the high bids for the separate parcels thereby obtaining the percentage of value that each group bears to the whole, which percentage can be applied to the amount of the winning bid and the value of each of the 5-3-3 groups of parcels determined and the correct amount of the sale proceeds can be calculated and distributed to Robert and Hildred in accordance with the exact individual or joint interest of each.  