OPAL CORY, APPELLANT,
v.
CHARLES O. PARKS, JR., GARDNER W. BECKETT, JR., DANIEL D. KRASS, AND CAROLINE E. GIBBS, APPELLEES
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Opal Cory appealed a summary judgment in a quiet title action regarding homestead real property. The court reversed, holding that determination of who is the head of a family for homestead purposes is a factual question that cannot be resolved on summary judgment, especially after the 1971 statutory amendment eliminated the presumption that the husband is head of the family.
Summary judgment was inappropriate. The determination of family headship is a factual question that must be resolved at trial. Under Florida homestead law, there can be only one head of a family, and the identification of that person involves a factual inquiry that cannot be decided on summary judgment, particularly after the 1971 amendment eliminated the presumption that the husband is head of the family.
[1] A conveyance of homestead property requires the joinder of the owner and the spouse if married.
[2] The determination of whether an individual is the head of a family for homestead purposes involves a factual inquiry.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift . . . .”
Establishes the constitutional requirement that both spouses must join in alienation of homestead property when married.
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Join FLexlaw to unlock all legal intelligenceIn 1972, Myrtle Wood Krass executed a warranty deed conveying property to herself and appellant Opal Cory as joint tenants. Myrtle Wood Krass was marr…
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BOARDMAN, Judge.
Opal Cory appeals a final summary judgment in an action she brought to quiet title to certain real property. We reverse.
Appellant raises three points, only one of which we find to have merit, and we will recite only the facts pertinent to this point.
In 1972, Myrtle Wood Krass executed a warranty deed of the property in dispute from herself to herself and appellant as joint tenants. At the time of the conveyance, Myrtle Wood Krass was married to Daniel Krass, and they occupied the property as their marital home. Mr. Krass did not join in the execution of the deed.
The trial court ruled, solely on the basis of the facts set forth above, that “Myrtle Wood Krass was a joint or equal ‘head of a household’ ” within the meaning of the homestead law, that the property was therefore homestead property not subject to alienation, and that the deed • in question was therefore void.
Article X, Section 4(c) of the Florida Constitution provides: “The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift . . . .” (Emphasis added). Section 4(a) defines homestead as certain property “owned by the head of a family.” Thus, the issue before the trial court was whether Myrtle Wood Krass was “the head of a family.”
In Brown v. Hutch, 156 So. 2d 683 at 684-685 (Fla. 2d DCA 1963), this court stated:
Generally, a family, for homestead purposes, includes at least two persons living together as one family under direction of one of them, who is recognized as the “head of the family.” Hussa v. Hussa, Fla. 1953, 65 So. 2d 759; 16 Fla. Jur., Homesteads, section 28, page 291. For determination of the existence of a family relationship, there are, in Florida,' two basic recognized tests to be met, either singly or in combination: (1) a legal duty to maintain arising out of the family relationship; (2) a continuing communal living by at least two individuals under such circumstances that one is regarded as the person in charge. Crosby and Miller, Our Legal Chameleon, 2 Fla.L.Rev. 24; Beck v. Wylie, Fla. 1952, 60 So. 2d 190; 16 Fla. Jur., Homestead, section 27, page 290.
For homestead purposes there can be only one head of a family. Solomon v. Davis, 100 So. 2d 177 (Fla. 1958); Anderson v. Garber, 183 So. 2d 693 (Fla. 3d DCA), cert. denied, 188 So. 2d 820 (Fla. 1966). The determination of family headship has always involved a factual inquiry, In re Estate of Wilder, 240 So. 2d 514 (Fla. 1st DCA 1970); see Beck v. Wylie, 60 So. 2d 190 (Fla. 1952), and cases cited therein, and this must certainly be true in the case of a family consisting solely of a husband and wife now that the presumption that the husband is the head of the family has been abrogated by the amendment in 1971 of Section 61.09, Florida Statutes to place a duty of support upon both spouses. There being a genuine issue of material fact to be resolved, summary judgment should not have been granted. Holl v. Talcott, 191 So. 2d 40 (Fla. 1966).
We have examined the other points raised by appellant and find them to be without merit.
Accordingly, the order of final summary judgment appealed is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.
HOBSON, Acting C. J., and DANAHY, J., concur.
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Holden v. Est. OF Mary Lee Gardner, 420 So. 2d 1082 (Fla. 1982)…pport. Smith v. Stewart, 390 So. 2d 178 (Fla. 4th DCA 1980). Whether an individual is a head of family is a question to be resolved on the facts of each case. Nationwide Financial Corp. of Colo. v. Thompson, 400 So. 2d 559 (Fla.1981); Cory v. Parks, 386 So. 2d 292 (Fla.2d DCA 1980). The petitioner contends that the 1968 revision of the constitution and the passage of the Dissolution of Marriage Act in 19711 changed the established law concerning the traditional homestead requirement that the owner of the pro…1 / 2
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Nationwide Fin. Corp. of Colo. v. Thompson, 400 So. 2d 559 (Fla. 1st DCA 1981)…). As the divergent results3 of the above-cited cases point out, because each case must be resolved on its own facts and circumstances [*562] the issue of who is the family head is inappropriate for disposition on a motion to dismiss. Cory v. Parks, 386 So. 2d 292 (Fla. 2d DCA 1980). Before receiving further evidence on the issue of whether Jack was the head of the family, for practical reasons of judicial efficiency the trial judge may first allow proof of the nature of the property interest involved in thi…
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In re Est. OF Samuel J. Melisi, 440 So. 2d 584 (Fla. 4th DCA 1983)…of Gardner, 420 So. 2d 1082 (Fla.1982). There can be only one head of a family, but since Florida law now places the duty of support on both spouses, there is no presumption of headship in the husband. Holden, 420 So. 2d at 1085 n. 4; Cory v. Parks, 386 So. 2d 292 (Fla. 2d DCA 1980); see § 61.09, Fla.Stat. (1981). Thus, this case should be remanded to the trial court to make that factual determination. If the trial court finds that Samuel was the head of the family, then Samuel’s undivided one half interest w…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Beck v. Wylie, 60 So. 2d 190 (Fla. 1952)
- Anderson v. Garber, 188 So. 2d 820 (Fla. 1966)
- Brown v. Hutch, 156 So. 2d 683 (Fla. 2d DCA 1963)
- Waymon Solomon v. Davis, 100 So. 2d 177 (Fla. 1958)
- In re Est. of Eugenia L. Wilder v. Mitchell, 240 So. 2d 514 (Fla. 1st DCA 1970)
- Lucile A. Anderson v. Garber, 183 So. 2d 693 (Fla. 3d DCA 1966)
- Hussa v. Hussa, 65 So. 2d 759 (Fla. 1953)