Taber v. TaberTaber v. Taber
- Reporters:
- ,
- Before:
- Zehmer, Wolf, Mickle (per curiam)
Cynthia Taber, the wife, appeals from a final judgment of dissolution of marriage. Appellant raises four points on appeal, only one of which has merit and needs to be discussed herein: Whether the trial court abused its discretion by providing for an inequitable distribution of marital assets.
In the final judgment of dissolution of marriage, the trial court awarded the husband net assets that the court valued at
In Collinsworth v. Collinsworth, 624 So.2d 287 (Fla. 1st DCA 1993), this court was presented with an unequal distribution of assets by the trial court without any written findings to support the method of distribution. The distribution scheme in the instant case is similar. As in Collinsworth, “the entire distribution of assets must be reversed and this case remanded with directions to reconsider the equitable distribution scheme in light of the factors set forth in section 61.075, and to make the written findings required by subsection 61.075(3) that justify an unequal distribution of marital assets.” Id. at 289.
In determining the value of real estate, it is entirely appropriate to deduct the estimated cost of selling the property where the value of the property is based on the prospective sale of the property, and the witness as to value indicates such a deduction is appropriate. Savers Fed. Savings and Loan Ass‘n v. Sandcastle Beach Joint Dev., 498 So.2d 519 (Fla. 1st DCA 1986). Absent such evidence, however, a further deduction of value for selling costs is inappropriate. Shaw v. Charter Bank, 576 So.2d 907 (Fla. 1st DCA 1991). In the instant case, there appears to be no evidence that sale of the property was imminent or that the value was based solely on the ability to sell the property. It is, therefore, unclear from the record on what basis the judge allowed a deduction for closing costs.
It is also unclear on what basis the trial court granted credit to the husband for one-half of the mortgage payments prior to the entry of the dissolution judgment. Prior to the entry of the judgment of dissolution, the home was held as a tenancy in the entireties. See Clawson v. Clawson, 54 So.2d 161 (Fla. 1951).1 In such an estate, both parties are obligated for the whole of any expenses or debt on the property (including mortgage payments and insurance). Marsh v. London, 181 So.2d 186 (Fla. 3d DCA 1965).
All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim for a special equity.
In the instant case, there is no evidence that the payments made by the husband toward the mortgage came from nonmarital funds. The party seeking to show a special interest as a result of contributions has the burden of proof to demonstrate that such a payment was from nonmarital funds or as a result of special efforts, and did not constitute payment of marital expenses. Dyson v. Dyson, 597 So.2d 320 (Fla. 1st DCA 1992); Glover v. Glover, 601 So.2d 231 (Fla. 1st DCA 1992). See also Deas v. Deas, 592 So.2d 1221 (Fla. 1st DCA 1992). Any expenditures made during the marriage are presumed to be in furtherance of the marriage, and the burden of proof would be on the party seeking to show that some special credit should be given for these payments made during the marriage.
ZEHMER, WOLF and MICKLE, JJ., concur.