SELMA E. STOTTLEMYER, APPELLANT,
v.
BICKFORD E. STOTTLEMYER, APPELLEE

Fla. 2d DCA | 1980-08-13
No. 79-1890
BOARDMAN, Acting C. J., and RYDER, J., concur.
386 So. 2d 858 Florida District Court of Appeal, Second District (1980)

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Synopsis

Wife appeals trial court's order invalidating a deed transferring her husband's solely owned homestead property to both spouses as tenants by the entirety, claiming the wife's failure to join in execution rendered it a nullity. The appellate court reverses based on intervening Florida Supreme Court authority clarifying that grantee joinder is not required for such transfers under the current homestead constitutional provision.


Holding

The grantee spouse is not required to join in execution of an inter-spousal conveyance of solely owned homestead property under the current homestead constitutional provision. The trial court's invalidation of the deed was therefore erroneous. The case is remanded to allow the trial court to determine whether the husband established sufficient facts supporting a special equity claim that would justify the same result on a different legal theory.


Headnotes

[1] Article X, section 4(c) of the Florida Constitution does not require a spouse to join in an interspousal conveyance of solely owned homestead property to the husband and…

[2] Section 689.11(1), Florida Statutes, is consistent with the Florida Constitution's provisions regarding interspousal homestead conveyances.

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Key Quotes

“the grantee's joinder is not required in either case under the current version of the homestead provision”

Statement of the Florida Supreme Court's holding in Jameson that overruled the Third DCA's interpretation and required reversal of the trial court's order

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Facts & Procedural History

The husband conveyed his solely owned homestead property to himself and his wife as tenants by the entirety without the wife joining in the execution …

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Opinion of the Court
CAMPBELL, Judge.

CAMPBELL, Judge.

The wife appeals an order of the trial court which, on authority of Jameson v. Jameson, 369 So. 2d 436 (Fla.3d DCA 1979), found that a deed whereby the husband conveyed his solely owned homestead property to himself and his wife as tenants by the entirety was a nullity because the wife had not joined in the execution of the deed. We reverse and remand on authority of Jameson v. Jameson, 387 So. 2d 351 (Fla.1980).

The trial court’s ruling in the instant case was not incorrect in light of the Third District Court’s interpretation of Article X, Section 4(c) in Jameson, the only case which had interpreted that provision as changed in the 1968 constitutional revision. Our sister court was of the view that while the grantee would not have to join in an inter-spousal conveyance of homestead property held as a tenancy by the entirety, Williams v. Foerster, 335 So. 2d 810 (Fla.1976); Denham v. Sexton, 48 So. 2d 416 (Fla.1950), the grantee would have to join, under the “.implied rationale” of Williams, if there was an interspousal conveyance of the grantor’s solely owned homestead property. Thus, the provision of Section 689.11(1), Florida Statutes (1977), to the contrary was declared unconstitutional.

The Florida Supreme Court reversed on appeal, holding that the grantee’s joinder is not required in either case under the current version of the homestead provision. The court pointed out that its decision in Williams construed the 1885 constitutional provision. Therefore, we must reverse the trial court’s ruling in the instant case.

However, the husband’s petition to dissolve a marriage which had only survived four and one-half months generally alleged that he had a special equity in the homestead and other property, and there was apparently1 some evidence presented which would support that allegation. Since the trial judge’s disposition of the case did not require consideration of those facts, and because it does not appear whether or not he did consider them, we remand in order to allow the trial judge to determine whether there are sufficient facts to support the same result on a different theory.

BOARDMAN, Acting C. J., and RYDER, J., concur. . The record does not contain a transcript of the hearing which was held to determine the parties’ respective property rights. The only facts which are even remotely relevant were recited in the husband’s pro se brief on appeal.


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