174 So. 2d 432 | Fla. Dist. Ct. App. | 1965
In this suit for divorce instituted by appellant wife, the chancellor entered a final decree of divorce in her favor and against the defendant. This is about the only part of said decree with which she is satisfied. Appellant now asserts error on the part of the chancellor in the following particulars: (1) in decreeing partition of the home which was held as an estate by the entirety on the ground that requisite pleadings had not been filed, (2) in decreeing a lien on said home in favor of a person not a party to the suit, and (3) in failing to grant to her alimony, or at least the use of the home of the parties.
Essential facts are: Plaintiff wife and defendant husband were married on December 2, 1951. It was the third marital venture for the plaintiff and the second for defendant. Plaintiff brought into the marriage four children — two by her first husband and two by her second husband— whose respective ages were 13, 11, 7 and 4 and they all moved into a home owned by the husband prior to the marriage. The husband adopted the two younger children and assisted in rearing them. About five years prior to the wife’s instituting the divorce suit, the parties constructed a new home, which is referred to as the “Houle Avenue House.” The sources of funds for construction of the new home which cost approximately $19,500.00 were: (1) $7,900.00 from sale of the home owned by the husband at the time of the marriage, (2) $9,000.00 borrowed by the husband from his aunt, a Mrs. Kelly, which loan was evidenced by a promissory note signed by the husband and referred to by the parties as the “Kelly loan” and (3) the balance from joint savings of the parties.
In his final decree, the chancellor, inter alia, approved and confirmed the division the parties had made between themselves of all personal property accumulated during their marriage; found that the older adopted child was nineteen years of age and self-supporting and awarded custody of the younger child to the wife and required the husband to pay support in the sum of $10.00 per week until July 15, 1964 (on which date the younger child would be 18 years of age) ; found that the wife has a responsible position with a local bank, is earning an income adequate to support herself and is not entitled to any alimony; and found that the Houle Avenue house was acquired and improved with funds received
It is well settled that divorce destroys an estate by the entirety and transforms the husband and wife into joint tenants or tenants in common. In that relationship each party generally has an equal undivided interest and either may seek partition after divorce provided it would not conflict with the divorce decree.
“It would not be difficult to generate two law suits from the situation but the divorce, the title to the home, the matter of alimony and the matter of restitution are all so involved that the same evidence may have to do with each of them so there is every reason why they should be adjudicated in one suit and we are shown no reason why they should not be considered together.”
Plere, the initial complaint filed by plaintiff did not pray for partition; this subject arose upon the counterclaim of the defendant, and this counterclaim was technically deficient in two vital respects. It was not sworn to by the complainant, and it did not describe the subject property by metes and bounds, or other appropriate description, as required by the statute. As to the first requisite, the Supreme Court of Florida held in Beverette v. Graham,
Appellant’s second contention that the chancellor decreed a lien on the Houle Avenue property in favor of a person not a party to the suit is not supported by the specific provisions of the decree. The chancellor in determining property rights incident to divorce did reach the conclusion that “ * * * between plaintiff wife and defendant husband that they are jointly liable for said loan, * * * ” and as an incident to partition he did provide for repayment of the loan from the proceeds of the sale of the home should such sale become necessary. The essence of the findings in the decree was to the effect that the building of the home was made possible by the loan and that some equitable adjustment must be employed to prevent unjust
We find that the chancellor erred in decreeing that the loan was the obligation of both parties. The controversial loan was initiated, agreed upon, and evidenced as a result of dealings between defendant and Mrs. Kelly. This record does not reflect any solicitation of the loan on the part of plaintiff from Mrs. Kelly nor does it show any promises of repayment, oral or written, made by plaintiff to Mrs. Kelly. The repayment of the loan was a matter solely between defendant and Mrs. Kelly.
We next consider that portion of the decree which provided that if sale by a special master becomes necessary, the proceeds would be used to discharge the loan before the balance was divided equally between the parties. The inherent right of a chancellor in a divorce action to adjudicate the parties’ equitable interests in property acquired during coverture has been consistently upheld. In Meloche v. Meloche
“Property rights existing between husband and wife may be' appropriate subjects of litigation in divorce proceedings when not a violation of law. Such rights have been adjudicated in this state as incidents to divorce, where not expressly or impliedly forbidden by any law or public policy and the record as made warranted such equitable procedure with consequent decree. See Carlton v. Carlton, 78 Fla. 252, 83 So. 87; Lowrie v. Lowrie, 92 Fla. 337, 111 So. 288; Taylor v. Taylor [100 Fla. 1009], 130 So. 713.”
We are of the view that here the chancellor in adjudicating the property rights of the Burnses could have found a special equitable interest in the property in favor of the husband. The term “Special Equity” seemingly was first used by our Supreme Court in Carlton v. Carlton,
Of special significance is the case of Francis v. Francis
“It is well settled that property right existing between husband and wife may be appropriate subject of litigation in divorce proceedings when not in violation of the law.”
Although not labeled as such, it is apparent that the chancellor in Francis found a “special equity” arising in favor of the husband because of facts similar to those in the instant case.
The general principles of equity also support such a conclusion. Here, plaintiff wife sought the aid of a court of equity in asking for a decree of divorce, which she received; now, she wants to profit therefrom according to strict principles of law. Our Supreme Court has consistently applied equitable maxims to property rights in divorce cases as is evidenced by the following statements in Engebretsen v. Engebretsen,
It is obvious that the chancellor had these elementary equitable maxims in mind when he entered the instant decree. However, established routes to judicial relief must be followed in reaching the ultimate end, and it is in this area we conclude that the chancellor erred, viz.: (1) By holding that both parties are jointly liable on the Kelly loan, (2) In ordering payment of the Kelly loan out of the proceeds of a sale of the property therein described in the event same was sold by a special master, and (3) In ordering partition on the insufficient pleadings. We recognize that the practical result of our decision might well amount to the same as the end result contemplated by the chancellor; but an orderly system.of jurisdiction compels us to conclude that the chancellor should have found that the husband had a special equity in the Houle Avenue property in an amount equal to the unpaid principal and interest on the Kelly note.
The cause is remanded with directions to the chancellor to:
1. Find a special equity in favor of the husband in the Houle Avenue property in an amount equivalent to the unpaid principal and interest on the Kelly loan, and
2. To permit either cotenant to amend the pleadings for partition of their properties.
Save for the foregoing, the chancellor’s decree is affirmed in every respect.
Affirmed in part and reversed in part with directions.
. Fisher v. Davenport, Fla.1956, 84 So.2d 910.
. Fields v. Fields, 1948, 160 Fla. 561, 35 So.2d 722.
. Beverette v. Graham, 1931, 101 Fla. 563, 132 So. 826.
. Gonzalez v. Gonzalez, (Fla.App.3d, 1963), 156 So.2d 206 and Banfi v. Banfi, (Fla.App.3d, 1960), 123 So.2d 52.
. Meloche v. Meloche, 1931, 101 Fla. 659, 133 So. 339, 140 So. 319.
. Carlton v. Carlton, 1919, 78 Fla. 252, 83 So. 87.
. Heath v. Heath, 1932, 103 Fla. 1071, 138 So. 796, 82 A.L.R. 537.
. Now Section 65.08, Florida Statutes, F.S.A.
. Dupree v. Dupree, 1945, 156 Fla. 455, 23 So.2d 554.
. Francis v. Francis, 1938, 133 Fla. 495, 182 So. 833, 834.
. Engebretsen v. Engebretsen, 1942, 151 Fla. 372, 11 So.2d 322.