SUSAN SUDHOLT, APPELLANT,
v.
LESTER F. SUDHOLT, APPELLEE

Fla. 5th DCA | 1980-10-15
No. 79-843/T4-499
ORFINGER and COBB, JJ., concur.
389 So. 2d 301 Florida District Court of Appeal, Fifth District (1980) Caution
Cited by 20 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In a dissolution of marriage appeal, the court affirmed the trial court's denial of the wife's claim to a special equity in marital property (home and boat) purchased primarily with her real estate business income, but reversed the denial of the husband's partition claim, holding that property held as tenancies by the entireties becomes subject to partition following dissolution.


Holding

The court affirmed denial of the wife's special equity claim in the home and boat because not all consideration for the property came from a source unconnected with the marital relationship—the husband's pooled assets and financial support for her business contributed to acquiring the property. However, the court reversed the denial of partition, holding that following dissolution, property held as tenancies by the entireties becomes subject to partition unless extreme circumstances justify denial.


Headnotes

[1] A special equity in marital property is created when all of the consideration for the property is supplied by one spouse from a source clearly unconnected with the marita…

[2] When marital property is acquired using funds from both spouses, or from sources connected with the marital relationship, a special equity is not established.

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Key Quotes

“[W]e hold that a special equity is created by an unrebutted showing, as was developed here, that all of the consideration for property held as tenants by the entir-eties was supplied by one spouse from a source clearly unconnected with the marital relationship.”

Establishes the test for special equity in marital property under Ball v. Ball; requires ALL consideration from sources unconnected to the marriage.

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Facts & Procedural History

The parties married in Missouri in 1974. Prior to marriage, the wife owned a home and the husband had personal property. They liquidated and pooled as…

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Opinion of the Court
FRANK D. UPCHURCH, Jr., Judge.

FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a final judgment for dissolution of marriage in which the court found that neither party had established a special equity in the marital home or boat and denied partition of the home.

Prior to their marriage in Missouri in 1974, the wife owned a home and the husband had purchased a sizeable amount of personal property. After liquidating their property and pooling their assets, the parties moved to Florida and used their funds to purchase property within the state. During their marriage, the husband used his fixed income which consisted of $720.00 per month in disability benefits, to support his wife and her children. No children were born of this marriage nor were any expected. Recently, the wife established a lucrative real estate business, income from which was used to purchase the marital home and boat which were both jointly titled. The court recognized a special equity in wife to the extent that she was awarded the furniture, fixtures and appliances located in the marital home.

The wife contends that the trial court erred in not awarding her a special equity in the marital home and the 1973 Glastron boat.

We conclude that the trial court was correct and affirm the denial of the special equity.

The wife contends that in view of Ball v. Ball, 335 So. 2d 5 (Fla.1976), Merrill v. Merrill, 357 So. 2d 792 (Fla. 1st DCA 1978), and Lindquist v. Lindquist, 351 So. 2d 391 (Fla. 2d DCA 1977), the denial of the special equity “does not comport with Florida law nor with logic and reason.” (Brief for Appellant at 7.) We believe that appellant seeks to extend Ball even further than the supreme court intended.1 In Ball, the court stated:

[W]e hold that a special equity is created by an unrebutted showing, as was developed here, that all of the consideration for property held as tenants by the entir-eties was supplied by one spouse from a source clearly unconnected with the marital relationship.

(Emphasis added.) Id. at 7.

In the case before us, all of the consideration for acquisition of the home did not come from the wife’s funds. The record reflects that the husband also liquidated his assets and while they were not as great as the wife’s contribution, they were pooled with hers to acquire property in Florida. Then with the husband’s support and encouragement, the wife obtained her real estate license. His funds paid for her schooling and initially helped her establish her real estate business. The test that “all of the consideration . . . was supplied . . . from a source clearly unconnected with the marital relationship” was not met. In fact, the evidence reflected that much of the consideration was derived from sources connected within the marital relationship.

The same analysis applies to the boat as there is no distinction between real and personal property. Lawless v. Lawless, 362 So. 2d 302 (Fla. 2d DCA 1978); Merrill v. Merrill, 357 So. 2d 792 (Fla. 2d DCA 1978).

The husband has also cross-appealed contending that it was error to refuse his prayer for partition of the marital home. We agree and reverse.

An estate by the entireties is not subject to partition during the marriage of the parties because both are deemed equally interested in the property and their interests are not severable. Strauss v. Strauss, 148 Fla. 23, 3 So. 2d 727 (1941). After the dissolution, the parties become tenants in common and the property is subject to partition. The supreme court stated in Condrey v. Condrey, 92 So. 2d 423 (Fla.1957), that the power of the trial court to deny partition should be invoked only in extreme cases, where otherwise manifest injustice, fraud or oppression would result if the remedy were granted.

There was nothing demonstrated to justify the trial court’s denial of partition. The wife’s earning ability exceeded the husband’s. His right and interest in the home were equal to the wife’s. To refuse to grant partition would require a showing of need on the part of the wife and an obligation of support by the husband. Neither was proved.

That portion of the judgment denying a special equity in the home and boat is AFFIRMED, the portion denying partition is REVERSED and REMANDED to the trial court for partition of the home.

ORFINGER and COBB, JJ., concur.


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Citator

Cited By

  • Sumner Landay v. Landay, 429 So. 2d 1197 (Fla. 1983)
    …EHRLICH, Justice. This is a petition to review the decision of the Second District Court of Appeal reported at 400 So. 2d 43 (Fla.2d DCA 1981). It alleges conflict with Sudholt v. Sudholt, 389 So. 2d 301 (Fla. 5th DCA 1980) and Snider v. Snider, 371 So. 2d 1056 (Fla. 3d DCA 1979), cert. denied, 383 So. 2d 1202 (Fla.1980). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution. We approve the result of the district court be…
  • Davis v. Rosman Charles Dieujuste, 496 So. 2d 806 (Fla. 1986)
    …res an allegation stating the quantity of the interest of each owner. Further, a judgment of dissolution does not bar statutory partition, for a cause of action does not arise until a final judgment of dissolution is entered. See Sudholt v. Sudholt, 389 So. 2d 301 (Fla. 5th DCA 1980). I would affirm the ruling of the district court finding that petitioner is barred from litigating her property claim in this post-dissolution proceeding. I would affirm the order of the district court without prejudice to the r…
  • Durand v. Durand, 16 So. 3d 982 (Fla. 4th DCA 2009)
    …dings are outdated since the amendment of the statute governing equitable distribution. See, e.g., § 61.075, Fla. Stat. (2008); Condrey v. Condrey, 92 So. 2d 423, 426 (Fla.1957) (stating partition generally is a matter of right); Sudholt v. Sudholt, 389 So. 2d 301, 302 (Fla. 5th DCA 1980) (“[T]he power of the trial court to deny partition should only be invoked in extreme cases, where otherwise manifest injustice, fraud or oppression would result if the remedy were granted.”). Under the facts of this case, Wi…

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