MARC SWICKLE, APPELLANT,
v.
SHERRY SWICKLE, APPELLEE

Fla. 4th DCA | 1998-11-12
No. 97-2415
STEVENSON and SHAHOOD, JJ., concur.
723 So. 2d 310 Florida District Court of Appeal, Fourth District (1998) Positive Treatment
Cited by 2 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

Marc Swickle appealed a final judgment dissolving his marriage to Sherry Swickle, raising eleven issues. The court found three issues had merit: the trial court erred in finding a special equity in the marital residence, miscalculated the number of child support payments per year, and double-counted child support arrearage.


Holding

The trial court erred on all three issues. First, because title was taken as tenants by the entireties, a statutory presumption made the property marital property, and Sherry failed to present evidence rebutting the presumption by proving a gift was not intended. Second, child support should be paid twice monthly (24 times per year), not biweekly (26 times per year), entitling Marc to a credit for overpayment. Third, the child support arrearage was incorrectly calculated by double-counting a nine-week period, reducing the proper amount to $3,046.76.


Headnotes

[1] A party claiming a special equity in marital real estate held as tenants by the entireties bears the burden of overcoming the statutory presumption that the property is m…

[2] A trial court errs in finding a special equity in marital real estate when the party claiming the special equity fails to present substantial competent evidence that fund…

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Key Quotes

“creates a presumption that entireties real estate is marital property regardless of who paid for it. The party claiming a special equity and seeking to have the property declared a non-marital asset now has the burden of overcoming this presumption by proving that a gift was not intended.”

Establishes the statutory presumption and burden of proof for special equity claims in tenancies by the entireties.

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Facts & Procedural History

Marc and Sherry Swickle were divorced. The trial court found that Sherry had a special equity of $33,345.09 in the marital residence based on non-mari…

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Opinion of the Court
COHN, JAMES I., Associate Judge.

COHN, JAMES I., Associate Judge.

Marc Swiekle appeals the final judgment dissolving his marriage to Sherry Swiekle. Of the eleven issues raised, we find three have merit and require reversal.

First, the trial court found that appellee had a special equity of $33,345.09 in the marital residence based upon the use of $14,-367 .68 from the sale of her condominium, a non-marital asset, and $18,977.41 from the sale of her non-marital investments, which represented the entire down payment and closing costs for the purchase of the marital residence. Title was taken as tenants by the entireties.

Section 61.075, Florida Statutes (Supp. 1994), “creates a presumption that entireties real estate is marital property regardless of who paid for it. The party claiming a special equity and seeking to have the property declared a non-marital asset now has the burden of overcoming this presumption by proving that a gift was not intended.” Robertson v. Robertson, 593 So. 2d 491, 494 (Fla.1991); see Baird v. Baird, 696 So. 2d 844, 847 (Fla. 2d DCA 1997); Villalva v. Villalva, 620 So. 2d 198, 199 (Fla. 4th DCA 1993). The presumption that assets are marital assets is overcome only by showing substantial competent evidence that a special equity interest in the marital residence exists. §§ 61.075(5)(a)l & (7), Fla. Stat. Appellee presented no evidence to rebut the presumption that she intended the funds to be a gift. See Bomwell v. Bomwell, 676 So. 2d 508, 510 (Fla. 4th DCA 1996). Since appellee failed to prove by substantial competent evidence that a gift was not intended, we conclude that the trial court erred in finding a special equity in the marital residence.

Second, although we conclude that the amount of monthly child support is not excessive, appellee correctly concedes that the number of payments ordered constitutes error. The trial court directed appellant to pay the monthly child support obligation in two equal installments, to be paid biweekly, resulting in twenty-six payments per year. However, the court should have ordered appellant to make child support payments twice a month, which would result in twenty-four payments per year. Therefore, appellant is entitled to a credit for overpayment from June 23, 1997, the date of the Amended Income Deduction Order. Finally, the trial court erred in its calculation of child support arrearage. The Final Judgment of Dissolution of Marriage reflects an aggregate arrearage in child support pay ments of $5,619.00, based upon the following findings:

a.Nine week period ending May 1,1995 $2,573.00

b. Contempt order of March 12,1996 (husband paid purge amount of $2,000.00) $4,189.00

c. Three week period from April 8, 1996 through April 28,1996. $ 857.76

The trial court erroneously “double dipped” by including the nine week period through May 1, 1995 a second time in its March 12, 1996 contempt order. This amount was subsumed by the contempt order, therefore, the child support arrearage should be reduced to $3,046.76.

All other issues raised are affirmed.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

STEVENSON and SHAHOOD, JJ., concur.


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Citator

Cited By

  • Escudero v. Escudero, 739 So. 2d 688 (Fla. 5th DCA 1999)
    …workers’ compensation settlement. However, he placed the title to the house in the parties’ joint names, thereby creating a presumption of a gift to Gloria. See § 61.075(5)(a)5.; Robertson v. Robertson, 593 So. 2d 491 (Fla.1991); Swiekle v. Swickle, 723 So. 2d 310 (Fla. 4th DCA 1998); Archer v. Archer, 712 So. 2d 1198, 1199 (Fla. 5th DCA 1998). The only testimony as to why he placed the title in joint names follows: Because I felt bad. I’m an old man and I can die at any time. But I feel very sorry because s…

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