The plaintiff former husband brings this suit for equitable partitioning of the marital residence and the personal property located therein. After conducting a rule nisi hearing and considering briefs submitted by the parties, the trial court denied the defendant former wife's motion to dismiss. We granted her application to appeal. We reverse.
It is true that the parties do each hold a one-half undivided interest in the subject property. However, the parties' divorce decree, which was rendered approximately four years before the filing of the complaint in this case, gives the defendant the right to live on the property. The plaintiff has alleged no facts showing that the defendant has been, or should be, divested of this right. Therefore, the defendant's motion should have been granted. See Rathkamp v. Rathkamp, 136 Ga. App. 423 (221 SE2d 221) (1975)