GLORIA M. TYLER, APPELLANT,
v.
DONALD L. TYLER, APPELLEE
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In this divorce case, the wife appealed the trial court's division of marital property and award of rehabilitative alimony. The appellate court affirmed most of the judgment but reversed the trial court's award of half the wife's stock to the husband and the restriction on her possession of the marital home conditioned on remaining unmarried.
The stock in the wife's name was a gift from the husband and should have remained her sole property; the husband had no special equity in it as he divested himself of all interest for estate planning purposes. The restriction on the wife's possession of the marital home is inappropriate and should be removed as it bears no necessary relationship to either the wife's need for support or the husband's property interest.
[1] Stock purchased by one spouse and placed in the other spouse's name is presumed to be a gift, and the purchasing spouse is not entitled to a special equity unless the fun…
[2] A restriction on a spouse's possession of the marital home, contingent on their living arrangements, may be inappropriate if it lacks a necessary relationship to support…
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Join FLexlaw to unlock all legal intelligence“The 100 shares of Indianapolis Power & Light stock purchased by the husband and put in the wife's name were a gift to the wife and should have remained her property.”
Establishes that stock placed in wife's name by husband constituted a gift and was her sole property
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Join FLexlaw to unlock all legal intelligenceThe parties were married for 23 years with no minor children. During the marriage, the wife supported the family while the husband attended dental and…
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LEHAN, Judge.
In this dissolution of marriage case, the wife appeals from portions of the final judgment involving the disposition of property and rehabilitative alimony. She also appeals from the order denying her request for attorney’s fees.
The parties had been married twenty-three years when dissolution proceedings began. There were no minor children of the parties. In the early years of the marriage, the wife worked to support the family while the husband attended dental and orthodontic school. The parties acquired various properties, including the marital residence, which were held in joint names. The wife held in her name 100 shares of Indianapolis Power & Light stock that the husband had bought in her name. The parties owned two condominium units which generated rental income; one unit was held in their joint names, and the other was held in the husband’s name alone.
The final judgment of dissolution, among other things, left all jointly-held property in joint names, left to the husband the condominium unit held in his name, and awarded the husband one-half of the stock held in the wife’s name. The wife was given exclusive possession of the marital residence “so long as she remains unmarried and does not enter into a living arrangement with a male other than a blood relative.” The wife was awarded $2,000 a month for rehabilitative alimony.
The 100 shares of Indianapolis Power & Light stock purchased by the husband and put in the wife’s name were a gift to the wife and should have remained her property. The evidence showed that the husband unquestionably divested himself of all interest in the stock for estate planning purposes. The husband is not entitled to a special equity in the stock because he did not show that the stock was purchased with funds acquired outside the marital relationship. Smith v. Smith, 382 So. 2d 1242 (Fla. 2d DCA 1980). As to the award to the wife of possession of the marital home, we find inappropriate the restriction placed thereon that the wife would lose possession if she enters into the living arrangement described above. We are not referring to acceptable or unacceptable social or moral standards.1 The term “living arrangement” in this context may well be ambiguous. There appears to be no necessary relationship of this restriction to either the wife’s need for support or to the husband’s interest in the property. If in the future the husband wishes to petition for a modification, he may do so. The trial court retained jurisdiction of all jointly-held property, which includes the marital home.
As to the wife’s appeal from the denial of her request for attorney’s fees, based upon the record we do not find that the trial court erred. The record does not include all proceedings below. No transcript was made of the hearing on attorney’s fees. Appellant disputes other portions of the final judgment regarding alimony and property disposition. Based upon the record presented to us, we cannot say that the discretion exercised by the trial court was “arbitrary, fanciful or unreasonable” or that the wife passed “from prosperity to misfortune”
Canakaris v. Canakaris, 382 So. 2d 1197, 1203, 1204 (Fla.1980). The trial court had the benefit of all the testimony and evidence in this case.
Accordingly, the final judgment is affirmed in all respects except that we reverse as to the award of the Indianapolis Power & Light stock and the above referenced restriction on the wife’s possession of the marital home. On remand, the trial court should award all of that stock to the wife and remove from that restriction the provision that such possession terminates if she enters into the living arrangement described above. The order denying the wife’s request for attorney’s fees is affirmed.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED WITH DIRECTIONS.
OTT, C.J., and HOBSON, J., concur. . There is nothing in the record as to any such prior living arrangements on the part of the wife.
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Kennedy v. Kennedy, 622 So. 2d 1033 (Fla. 5th DCA 1993)…cohabits” with another adult male. If called upon to voice an opinion on that issue, I would vote at this time to strike the provision from the final judgment on the authority of Condren v. Condren, 475 So. 2d 268 (Fla. 2d DCA 1985); Tyler v. Tyler, 427 So. 2d 1027 (Fla. 2d DCA 1983); and Dominik v. Dominik, 390 So. 2d 81 (Fla. 3d DCA 1980). See also Buscemi v. Buscemi, 610 So. 2d 674 (Fla. 2d DCA 1992); Townsend v. Townsend, 538 So. 2d 129 (Fla. 2d DCA 1989). In conclusion, I am struck by the irony of the tr…
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McCLAY v. McCLAY, 447 So. 2d 1026 (Fla. 4th DCA 1984)…males living in the marital residence during the wife’s exclusive possession thereof. Such a provision would preclude one of their sons living there after he passes his eighteenth birthday. Like the Second District Court of Appeal in Tyler v. Tyler, 427 So. 2d 1027 (Fla. 2d DCA 1983), we believe the better way to handle this situation is by way of future modification. Should a situation arise whereby the husband feels that either the welfare of his children or his rights are being harmed by a male resident, he…
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Howard v. Howard, 467 So. 2d 768 (Fla. 1st DCA 1985)…welfare of his children is threatened or his rights are being infringed upon by the presence of a male resident, he can seek modification of the possessory rights of the wife. Ibid.; Greer v. Greer, 438 So. 2d 535 (Fla. 2d DCA 1983); Tyler v. Tyler, 427 So. 2d 1027 (Fla. 2d DCA 1983). The record reflects that this provision, although included in the form of judgment submitted by the wife (with additional qualifying language omitted in the final judgment), was included at the direction of the court and was not…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Smith v. Smith, 382 So. 2d 1242 (Fla. 2d DCA 1980)