JOHN S. HOLMES, APPELLANT,
v.
TERESE L. HOLMES, APPELLEE

Fla. 3d DCA | 1993-01-19
No. 91-2584
Before COPE, LEVY and GERSTEN, JJ.
613 So. 2d 511 Florida District Court of Appeal, Third District (1993) Positive Treatment
Cited by 8 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

John Holmes appeals a dissolution of marriage judgment challenging the trial court's allocation of the marital home. The appellate court affirms that the home is marital property acquired during the marriage but reverses and remands regarding the specific conditions for the wife's exclusive possession and the timing of the husband's $20,000 lump-sum payment.


Holding

The court affirmed that the marital home is marital property subject to equitable distribution because the closing occurred during the marriage, despite the wife holding title solely. The court affirmed the wife's $21,600 special equity for her premarital down payment contribution. However, the court reversed the equitable distribution portion of the judgment concerning the marital home because the judgment failed to specify the conditions and duration of the wife's exclusive possession and did not clearly address the timing of the husband's $20,000 payment.


Headnotes

[1] A marital asset is defined as an asset acquired during the marriage, individually by either spouse or jointly by them.

[2] A spouse may be entitled to a special equity in marital property for the contribution of separate premarital funds.

Previewing 2 of 6 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

Key Quotes

“Under the equitable distribution statute, a marital asset is, among other things, an asset "acquired ... during the marriage, individually by either spouse or jointly by them-" § 61.075(5)(a)(l), Fla.Stat. (1991)”

Establishes that the marital home is marital property because closing occurred during the marriage, regardless of title holder

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The wife contracted to purchase a home six months before marrying the husband, providing a $21,600 down payment from sale proceeds of her prior reside…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
COPE, Judge.

COPE, Judge.

John S. Holmes appeals a final judgment of dissolution of marriage. We affirm in part and reverse in part.

The husband first asserts that he should have been allocated a greater share of the value of the marital home. He contends that the trial court erred in its application of the equitable distribution statute, section 61.075, Florida Statutes (1991).

In the present case the wife, Terese L. Holmes, had entered into a contract for the purchase of a home approximately six months prior to the parties’ marriage. The wife provided the entire down payment, consisting of $21,600 she derived from the sale of her previous residence. The wife also obtained a mortgage loan in the amount of $40,000 from her parents, on which the wife was solely responsible.

The closing on the purchase of the residence occurred several days after the parties were married. The wife took title in her maiden name. The husband attended the closing, but his name does not appear on the deed, mortgage, or closing documents.

Soon thereafter, the wife executed a deed to place title to the residence in the parties’ joint names as tenants by the en-tireties. The wife testified at trial that she did this under duress. She stated that shortly after she executed the deed, she informed the husband that she refused to record it because she did not want the husband’s name on the title to the property. The deed was never recorded. Approximately nine years later, at around the time of the marital breakup, the wife tore up the deed.

During the course of the marriage, both parties contributed from their earnings toward the payoff of the mortgage. The mortgage balance had been reduced from $40,000 to approximately $1,900 at the time of the final hearing.

During the dissolution proceedings, the husband asserted that because the home had been acquired during the marriage it was marital property. The husband requested that the home be sold and that the proceeds be divided. Significantly for purposes of the present appeal, the husband took the position below that the wife was entitled to a special equity in the amount of $21,600, which was the down payment the wife contributed from her separate premarital funds.

The wife argued below that the home was entirely her separate property and was not marital property. She contended that this was so because she had contracted to purchase the property prior to the marriage. She argued that the date of closing was irrelevant. She also argued that the execution of the deed creating the tenancy by the entireties was done under duress and that no gift to the husband was ever accomplished thereby.

The trial court found that the wife was entitled to a special equity in the home in the amount of $21,600. The court decreed that the wife would be the sole owner of the marital residence. In this connection, it should be noted that the wife was designated the primary custodial parent for the parties’ two children, so that the children would also reside primarily at the marital home. The trial court also ordered “that the Husband shall have an interest in the proceeds of the sale of the home equal to $20,000 as and for alimony by the Wife to the Husband. See Ingram v. Ingram, 379 So. 2d 955 [ (Fla.1980) ].” The final judgment did not, however, specify a date on which the marital home was to be sold.

The wife’s initial contention below was that the marital residence was her separate property and that the husband had no interest therein. That argument was entirely without merit. Under the equitable distribution statute, a marital asset is, among other things, an asset “acquired ... during the marriage, individually by either spouse or jointly by them-” § 61.075(5)(a)(l), Fla.Stat. (1991) (emphasis added). Here, the closing for the purchase of the residence took place several days after the parties had been married. Under the statute, the marital home is indisputably a marital asset, notwithstanding that the wife took title in her name only.*

Several months after the final judgment, the Florida Supreme Court decided Robertson v. Robertson, 593 So. 2d 491 (Fla.1991). Robertson held that under the equitable distribution statute, special rules apply where real property is held as a tenancy by the entireties. The 1988 equitable distribution statute “... ‘has shifted the burden of proof by creating a presumption that property transferred to a tenancy by the entire-ties is marital, regardless of its original acquisition. It is up to the spouse who claims a special equity interest to prove that a gift of that interest was not intended.’ ” Id. at 494 (citation omitted).

In light of Robertson the husband argues that the deed executed by the wife was valid and effective to create a tenancy by the entireties. He further argues that there was a gift of the wife’s special equity interest when the tenancy by the entireties was created. He therefore argues that the judgment must be reversed insofar as it allocated a $21,600 special equity to the wife.

We disagree that reversal is required on this point. The focus of the testimony below was whether or not the marital home was a marital asset subject to equitable distribution. The husband’s position was that the home was a marital asset and that he was entitled to equitable distribution of a share therein.

However, the husband’s position at trial also was that the wife was entitled to a $21,600 special equity, representing the amount of her separate assets which had been used for the down payment on the home. That being so, we do not disturb the portion of the final judgment which set aside the special equity to the wife.

The trial court agreed with the husband’s position that the husband was entitled to a share of the value of the home. The court structured this as a $20,000 lump-sum payment to be made at such time as the marital home is sold. A lump-sum payment is a permissible option under the statute. § 61.075(9), Fla.Stat. (1991).

The husband complains, however, that although the judgment provides that he is to receive payment of his interest at the time the home is sold, the judgment contains no requirement that the home ever be sold. Under the equitable distribution statute, the trial court has discretion to fashion a decree in light of the desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.

§ 61.075(l)(h), Fla.Stat. (1991).

In the present case the youngest child is ten years old, and the apparent objective of the trial court was to give the former wife exclusive possession of the residence until the child reaches the age of eighteen. Assuming we have correctly interpreted the trial court’s intent, the judgment should specifically so provide. If we have misunderstood the intent of the trial court, we note that the equitable distribution statute allows the trial court the discretion to fashion the award in accordance with “[a]ny other factors necessary to do equity and justice between the parties.” Id. § 61.-075(l)(i); see also Robertson v. Robertson, 593 So. 2d at 493.

The equitable distribution portion of the judgment relating to the marital home is reversed and the cause remanded for further proceedings consistent herewith. The remainder of the judgment is affirmed, including the dissolution of the marriage of the parties.

Affirmed in part, reversed in part, and remanded.

*

The husband also argued alternatively that the execution of the deed conveying the property to the parties as tenants by the entireties likewise rendered the property a marital asset.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Smith v. Smith, 971 So. 2d 191 (Fla. 1st DCA 2007)
    …nly, other factors surrounding the execution of key documents relating to the acquisition of (and financial responsibility for) the marital residence after the parties married indicate that the home is, indeed, a marital asset. See Holmes v. Holmes, 613 So. 2d 511, 513 (Fla. 3d DCA 1993) (concluding that the marital home was a “marital asset” divisible upon the dissolution of the parties’ marriage, although the down payment was provided entirely by former wife, who had title in her name only, where the closin…
  • Otto v. Sigmund, Jr., 631 So. 2d 329 (Fla. 1st DCA 1994)
    …jected. Also, it is well-established that the title to property is not always determinative of whether the property is a marital asset for equitable distribution purposes. See, Hamm v. Hamm, 492 So. 2d 467 (Fla. 1st DCA 1986), and Holmes v. Holmes, 613 So. 2d 511 (Fla. 3d DCA 1993). We note that there is no evidence in the instant record substantiating the allegation that the deceased had formally conceded the property was subject to equitable distribution. Furthermore, there is no indication in the instant…
  • Wertkin v. Wertkin, 763 So. 2d 461 (Fla. 4th DCA 2000)
    …an a naked lien.... ” Martyn, 257 So. 2d at 579. The husband’s pre-marriage purchase of the note and mortgage, therefore, did not give him title to the home. Since title was acquired during the marriage, it is marital property. See Holmes v. Holmes, 613 So. 2d 511, 513 (Fla. 3d DCA 1993)(where wife entered into a contract to purchase home six months before marriage but did not close until a few days after the marriage, home was a marital asset, but wife was entitled to special equity for down payment); Cummin…

Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw