This appeal by the plaintiff wife is from those portions of a final decree which awarded alimony and child support, and which found that as to a farm located in Maryland the evidence overcame the presumption of a gift in favor of the wife and that after retiring a bank loan the parties should divide equally the remaining proceeds of the farm sale. The property originally was held by the parties as tenants by the entirety but the interest of the husband subsequently was conveyed to the wife and the property sold during the divorce proceedings.
The plaintiff has raised two points on appeal, the first questioning the holding of the court that the farm was the joint property of the parties and the second questioning the amount of alimony and child support.
The plaintiff testified that in reconciliation discussions during a separation of the parties in 1964, at a meeting with her lawyer and her husband’s lawyer, “Two, I asked for the farm tо be put in my name as security. * * * So, he ordered his lawyer to have our mutual lawyer draw up a deed changing the farm to my name.” A deed of the property to the plaintiff was executеd and recorded on December 14, 1964, and referring to early 1966, plaintiff stated, “I had the income from the farm which was rented at $200 a month.” As noted above it was sold after suit was filed in Florida, which was in March, 1966, alleging extreme cruelty. The evidence also reflected that after the deed to the wife the parties gave a $6000 note to a bank, the moneys to be used in large part for repair on a house in Delray Beach. The defendant testified, in response to an inquiry when and for what purpose the loan was made, that “This loan — the time as a matter of fact I changed the title of her name on Long Haul Farm, some months after her attorney desired to have that done. And as a matter of fact at one period Mrs. Fuller said, ‘Well, don’t bоther to change the name.’ I went ahead and did it and it was with the full understanding that we were going to make the move to Florida, that all these things and bills accumulated would be paid off with the sale of Long Haul Farm. * * * And the $6,000 which she co-signed, and which was thoroughly understood would be paid off with the sale of Long Haul Farm, also was understood at First Seneca Bank. * * *” The defendant further stated that before their final separation in March, 1966, the farm was rented for a short term and the rent was “put in the common kitty to try and eat up the bills.” In its decree the court found that when the farm was rеnted
It was plaintiff’s position that the transfer of the farm to her constituted a fully executed and enfоrceable contractual obligation of the defendant to her arising out of a reconciliation agreement rather than a gift, and if such transaction constituted a gift rather than a performance of a contract that nevertheless the presumption of a gift was not overcome by the defendant’s evidence.
The husband does not contend that such an agreement is not enforceable but that in the present case there is no evidence of what were the terms of the agreement, other than the fact that the husband transferred his interest in the farm to his wife “as security” for their reconciliation.
The farm is located in Maryland, the conferences between the parties and their attorneys at which the conditions of the reconciliation were agreed upon occurred in Maryland, and the parties became reconciled in Maryland, where they were residents.
In 24 Am.Jur.2d, Divorce and Separation, § 17, it is stated that, “Where the parties live apart for legal cause it is clear that a contract whereby the aggrieved spouse forgives or condones the misconduct and the offender agrees to pay money or transfer property to the condoner is not against public policy; the tendency of such contracts is to unite rather than separate the spouses. Moreover, the resumption of marital relations is a valid and sufficient consideration for the contract under such circumstances.” See аlso
The validity and enforceability of a reconciliation contract has been upheld in Maryland. In Young v. Cockman, 1943,
It appears from the evidence recited above that the transaction was one of contraсt rather than gift, the parties obviously agreeing to become reconciled and to resume cohabitation upon the husband furnishing his wife with financial security, the testimony further reflecting that thе wife theretofore had legal cause to live apart from her husband.
Even if the conveyance of the husband’s interest in the property were construed as a gift rather than a contract, the evidence fell short of the standard of proof required to overcome the presumption of a gift.
The husband conceded that the well-established rule in Florida wаs to the effect that there was a presumption of a gift to the wife upon a transfer by the husband to the husband and wife-as tenants by the entirety as demonstrated by Holton v. Holton, Fla.App.1966,
In Ray v. Ray, Fla.1950,
To the same effect is the case of Olsen v. Olsen, Fla.App.1967,
The mere facts of.some time later co-signing a note, which was to be discharged from the proceeds of the sale оf the farm property, and of using the rent from the property, which appears to have been rented a few months before the final separation, for common living expensеs, are not sufficient to overcome the presumption of a gift in favor of the wife.
The second question has been carefully reviewed. It is not established on the record that the rulings оf the lower court were an abuse of discretion in the awards of alimony and child support.
Affirmed in part and reversed in part, with directions to the court below to modify its final decree by declaring the wife to be the sole owner of the remaining proceeds of the sale of the farm.