ROBERT SMEATON, APPELLANT,
v.
CHRISTINE SMEATON, APPELLEE
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The court held that the trial court erred in awarding a special equity to the wife due to insufficient evidence to overcome the statutory presumption of marital assets and in failing to properly calculate the effect of the special equity on asset distribution.
The former husband challenged a final judgment of dissolution of marriage, specifically concerning the award of a special equity to the wife and the s…
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PER CURIAM.
The former husband challenges a final judgment of dissolution of marriage. He raises three issues on appeal, two of which we determine to have merit. We first find that there was insufficient evidence to overcome the statutory presumption that real estate held as tenants by the entireties constitutes a marital asset. § 61.075(5)(a)5; Robertson v. Robertson, 593 So. 2d 491 (Fla.1991). The trial court, therefore, erred in awarding a special equity in favor of the wife. Rutland v. Rutland, 652 So. 2d 404 (Fla. 5th DCA 1995).1
The second issue concerns the trial court’s failure to properly calculate the effect that the special equity would have on the distribution of assets in accordance with Landay v. Landay, 429 So. 2d 1197 (Fla.1983). Appellee properly concedes that this constituted error. Hess v. Hess, 654 So. 2d 199 (Fla. 4th DCA 1995).
We, therefore, reverse that portion of the final judgment dealing with equitable distribution and remand for further proceedings consistent with this opinion.
JOANOS, WOLF and VAN NORTWICK, JJ., concur. . The wife did not file a cross appeal; therefore, we are unable to address the special equity granted to the husband.
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Simmons v. Simmons, 979 So. 2d 1063 (Fla. 1st DCA 2008)…n Hill v. Hill, 675 So. 2d 168, 169 (Fla. 5th DCA 1996), lends some support to the view that one spouse can convey to both spouses as tenants by the entirety in fee simple without, in effect, conveying a present interest. But see Smeaton v. Smeaton, 678 So. 2d 501, 501 (Fla. 1st DCA 1996) (concluding there was “insufficient evidence to overcome the statutory presumption that real estate held as tenants by the entireties constitutes a marital asset”). In any event, the Simmonses’ case more closely resembles Ko…
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Furbee v. Barrow, 45 So. 3d 22 (Fla. 2d DCA 2010)…trial court’s finding that the majority of the value of the marital home was nonmarital because the wife used the proceeds of a judgment in her favor in a products liability lawsuit to construct the home during the marriage. Cf. Smeaton v. Smeaton, 678 So. 2d 501 (Fla. 1st DCA 1996) (finding that there was insufficient evidence to overcome the statutory presumption that real estate held as tenants by the entireties constitutes a marital asset). Ms. Barrow contends that Mr. Furbee did not preserve this issue…
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The Wiccan Religious Coop. OF Fla., Inc. v. Zingale, 898 So. 2d 134 (Fla. 1st DCA 2005)…an appealable issue because the Department failed to file a cross-appeal. We disagree. Generally, a cross-appeal must be filed to challenge an unfavorable portion of a final judgment substantially favorable to the ap-pellee. See Smeaton v. Smeaton, 678 So. 2d 501, 501 n. 1 (Fla. 1st DCA 1996). However, this rule is procedural, not jurisdictional, and can be waived. See Walker v. State, 457 So. 2d 1136, 1137 (Fla. 1st DCA 1984) (ruling that “[bjecause the court gains jurisdiction over the entire cause at the…1 / 2
Authorities Cited
- Sumner Landay v. Landay, 429 So. 2d 1197 (Fla. 1983)
- Robertson v. Robertson, 593 So. 2d 491 (Fla. 1991)
- Rutland v. Rutland, 652 So. 2d 404 (Fla. 5th DCA 1995)
- Hess v. Hess, 654 So. 2d 199 (Fla. 4th DCA 1995)