VEDA SHERRILL WIMBERLY, APPELLANT,
v.
WAYNE T. WIMBERLY, APPELLEE
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Veda Wimberly appealed a divorce judgment in which the trial court classified a Jackson County residence as a nonmarital asset of her former husband. The appellate court reversed, holding that property held as tenants by the entireties is presumed to be marital and subject to equitable distribution, and remanded for proper findings on asset distribution.
Property held as tenants by the entireties is presumed to be a marital asset subject to equitable distribution. The spouse seeking to establish special equity has the burden of overcoming this presumption by proving no gift of an interest in the property to the other spouse was intended. The trial court erred in finding the property nonmarital without making findings to support this conclusion or identifying evidence satisfying the burden. The trial court also erred by failing to make required findings regarding the distribution of remaining assets.
[1] Real property held as tenants by the entireties is presumed to be a marital asset subject to equitable distribution.
[2] The spouse seeking a special equity in entireties property bears the burden of overcoming the presumption by showing no gift of an interest to the other spouse was intend…
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Join FLexlaw to unlock all legal intelligence“Real property held as tenants by the entireties is presumed to be a marital asset subject to equitable distribution.”
Establishes the controlling legal presumption that shifted the burden of proof to the former husband to overcome marital asset classification.
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Join FLexlaw to unlock all legal intelligencePrior to marriage, the former husband's family gave him real property. After the parties married, the former husband placed the former wife's name on …
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PER CURIAM.
The appellant, Veda Sherrill Wimberly, timely appeals from a final judgment of dissolution of marriage. The appellant contends that the trial court erred in finding that the parties’ Jackson County residence was the nonmarital asset of the former husband. Because this was error, we reverse. We also find merit in the appellant’s argument that the trial court erred in not making findings to support the distribution of the remaining assets.
Prior to the marriage, the former husband’s family gave him the real property at issue. After the parties married, the former husband placed the former wife’s name on the deed. The trial court found that the property was nonmarital because it was given to him by his family before the marriage. This was error. Real property held as tenants by the entireties is presumed to be a marital asset subject to equitable distribution. § 61.075(5)(a)5., Fla. Stat. (2000); Robertson v. Robertson, 593 So. 2d 491, 494 (Fla.1991). The spouse who seeks a special equity in the property has the burden of overcoming the presumption by showing that no gift of an interest in the property to the other spouse was intended. Id. The entireties property in the present case was thus presumed to be a marital asset, and the former husband had the burden of overcoming the presumption. The trial court made no findings to this effect. Furthermore, the record contains no evidence to support a finding that the former husband satisfied his burden.
Additionally, it appears that the distribution of the remaining assets was unequal. The order lacks findings to support the distribution according to the enumerated statutory factors. § 61.075(3), Fla. Stat. (2000). On remand, the trial court must identify the remaining assets as marital or nonmarital, determine the values, and make findings of fact regarding the distribution as required by section 61.075(3), Florida Statutes (2000). See Green v. Green, 788 So. 2d 1083, 1085 (Fla. 1st DCA 2001); Colley v. Colley, 745 So. 2d 1125, 1125 (Fla. 1st DCA 1999); Prom v. Prom, 589 So. 2d 1363, 1364 (Fla. 1st DCA 1991).
REVERSED and REMANDED.
BARFIELD, KAHN and PADOVANO, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Robertson v. Robertson, 593 So. 2d 491 (Fla. 1991)
- Prom v. Prom, 589 So. 2d 1363 (Fla. 1st DCA 1991)
- Rogers v. State, 788 So. 2d 1083 (Fla. 4th DCA 2001)
- Monts v. State, 745 So. 2d 1125 (Fla. 1st DCA 1999)
- Colley v. Colley, 745 So. 2d 1125 (Fla. 1st DCA 1999)