Evers v. Evers

Sep 7, 1979

No. MM-229

Versions:374 So. 2d 1117

1979 Fla. App. LEXIS 15752

Lead Opinion

SHIVERS, Judge.

Appellant husband seeks review of the trial court’s denial of husband’s claim of special equity in the marital home.

The marriage was of short duration. The parties were married to each other on August 9, 1975, the petition for dissolution was filed on September 2, 1978, final judgment being entered on Novembеr 30, 1978. There were no children and both parties were employed during the marriage.

The marital home was jointly titled. The ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍husband contributed a total of $18,840 *1118from sources and separate funds cleаrly outside the marriage of consisting of $16,-000 from his life savings accumulated prior to this marriage, $1,400 from thе settlement of husband’s March 1975 accident, and $1,440 from estate of husband’s mother, who died before the marriage. The $1,400 and the $1,440 had been placed in a joint account with the wife. The wife contributed a total of $1,302.50 from sources clearly unconnected with the marriage. Both parties cоntributed further to the house by their financial contributions from sources connected with the marriage or earned during the marriage. Both made physical contributions of labor to the house.

We hold that a special equity of $18,840 in favor of the husband was created in the marital home property and that a special equity of $1,302.50 in favor of the wife was created in the marital home, аnd that the parties are entitled to share equally in the remaining equity of the house.

The record does not contain competent substantial evidence of donative intent on the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍part of the husband sufficient to negate the special equity inuring to the husband. Ball v. Ball, 335 So.2d 5 (Fla.1976), Merrill v. Merrill, 357 So.2d 792 (Fla. 1st DCA 1978), Malkemes v. Malkemes, 357 So.2d 223 (Fla. 2nd DCA 1978), Bickerstaff v. Bickerstaff, 358 So.2d 590 (Fla. 1st DCA 1978).

As we stated in Merrill at 793:

“. . . We cannot read Ball v. Ball, 335 So.2d 5, 7 (Fla.1976), as holding that a word or two of testimony by the recipient spouse, to the effect that the other intended a gift, obliterаtes the special equity resulting from an unrebutted showing that the grantor spouse acquired the property from sources entirely independent of the marriage. . . . ”

That part of the final judgment inconsistent herewith is reversed and this cause remanded for further proceedings consistent herewith.

MILLS, C. J., concurs. ROBERT P. SMITH, Jr., J., dissents.

Dissenting Opinion

ROBERT P. SMITH, Jr., Judge,

dissenting:

I think wе should defer to the circuit court’s finding that the husband did not, by providing most of the down payment for the parties’ home property, held by the en-tireties, acquire a “special equity” encumbering the wifе’s undivided interest. Correspondingly, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍I see no reason to counterc-harge the husband’s undivided interest with thе number of dollars contributed to the purchase by the wife. Refusing to indulge in this problematic tracing of contributions, the chancellor rightly stated:

In this case, the parties jointly selected the property; they purchased it in their joint names; and although the husband contributed more cash because he was able to contribute more cash, the contributions of the wife were very substantial. The husband’s testimony that he had no intent of the wife being an equal owner with him is simply unbelievable.

There are a great many problems in marriage dissolutions. Frequently there are children and much trouble with alimony and child support. Frequently there are harassments following dissolu-tions. However, dissolutions have not yet degenerated into an accounting where the Court must evaluate each item of labor, love and material contributions and balance one off against the other so that each party has an accounting down to the last scintilla of what he or she contributed to thе marriage.

The Court disregards the chancellor’s finding, that the testimony negating a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍gift was “simply unbelievablе,” which I think is inappropriate in itself.1 Moreover, the Court in my opinion has carried the “special equity” inquiry far beyond its doctrinal limits. Granted that the Supreme Court in *1119Ball2 did not fully “determine the range of circumstances which might create a special equity,” thus leaving open the question of whether a special equity might arise when less than “all of the consideration for property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship,” surely the “special equity” doctrine does not require an appellate court to penetrate both the deed to the home property, which “speaks for itself” in declaring the husband and wife equal owners, and the joint bank account into which both spouses deposited and from which the down payment was drawn. Buying a home and taking it in both names is quitе an ordinary event in the lives of newly-marrieds; and there is nothing unusual in the circumstance that one оf the spouses, from independent resources, contributed more to the joint bank accоunt, thence to the down payment, than the other. In my opinion, neither the husband’s nor the wife’s contributiоn to the common down payment fund was an “extraordinary contribution” justifying a judicial piercing of the tenancy by the entire-ties. Ball, 335 So.2d at 7. I would affirm.

Notes

. Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Snider v. Snider, 371 So.2d 1056 (Fla. 3d DCA 1979); Merrill v. Merrill, 357 So.2d 792, 793 (Fla. 1st DCA 1978):

The question of donative intent is one of a preponderance of the credible ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍evidence; and that question is for the chancellor, not for us.

. Ball v. Ball, 335 So.2d 5, 7 (Fla.1976).