TERRY M. DAVIS, APPELLANT,
v.
BONNY P. DAVIS, APPELLEE
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In a dissolution case, the appellate court reversed a trial court's award of special equity in the marital home to the former wife, holding that the trial court failed to overcome the statutory presumption that property held as tenants by the entireties is a marital asset. The court remanded for equitable distribution treating the home as marital property without any special equity.
The court reversed the award of special equity, holding that under Florida Statutes section 61.075(5)(a)(5), property held as tenants by the entireties is presumed to be a marital asset, and the party claiming special equity bears the burden of proving the absence of donative intent. That burden was not met here. The entire marital home must be treated as marital property without special equity and distributed equitably.
[1] Real property held by parties to a dissolution proceeding as tenants by the entireties is presumed to be a marital asset.
[2] A party claiming a special equity in property held as tenants by the entireties bears the burden of proving that a gift was not intended.
Previewing 2 of 4 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“The party claiming a special equity and seeking to have the property declared a non-marital asset ... has the burden of overcoming this presumption by proving that a gift was not intended.”
Establishes the legal standard that the party asserting special equity must prove absence of donative intent to overcome the statutory presumption that property held as tenants by the entireties is marital property.
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Join FLexlaw to unlock all legal intelligenceTerry and Bonny Davis held title to their marital home as tenants by the entireties when the dissolution petition was filed. The trial court found a s…
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We have for review a dissolution decree finding a special equity in favor of the former wife, Bonny P. Davis, in the marital home to which, when the dissolution petition was filed, the parties held title as tenants by the entireties. Here as below, the former husband, Terry M. Davis, contends that the ruling on special equity was error. We reverse and remand for equitable distribution without regard to any special equity in favor of either party.
Under section 61.075(5)(a)(5.), Florida Statutes (2007), it was presumed that real property the parties to a dissolution proceeding held as tenants by the entireties was a marital asset, even where the real property was originally the sole property of one of the parties to the marriage. Before the statute was amended to abolish special equity outright, see Ch. 08-46, § 1, at 738, Laws of Fla. (now codified as § 61.075(11), Fla. Stat. (2009)), it placed the burden on the party asserting a claim of special equity to prove an absence of donative intent in the event of an inter-spousal conveyance: “The party claiming a special equity and seeking to have the property declared a non-marital asset ... 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 also Stough v. Stough, 933 So.2d 603, 607 (Fla. 1st DCA 2006) (same). This presumption, which went unacknowledged in the decree under review, was not overcome here.
The former wife argues that the distribution of marital property was equitable nevertheless and should be affirmed for that reason. But we “conclude that the record in this case will not permit us to affirm on this alternate basis.” Meyer v. Meyer, 25 So.3d 39, 42 (Fla. 2d DCA 2009). See Robertson v. State, 829 So.2d 901, 909 (Fla.2002) (holding that where defendant “never received an opportunity to present evidence or make argument” on an alternative theory, “the Third District improperly relied upon the ‘tipsy coachman’ doctrine”). The decree under review contained no findings on statutory factors that could support the unequal distribution of marital property for any reason(s) other than the special equity on which the trial court improperly relied.
“Equitable distribution of a marital asset should be equal, unless legally sufficient justification for an unequal distribution is given based on the relevant statutory factors.” Foley v. Foley, 19 So.3d 1031, 1032 (Fla. 5th DCA 2009); see also Stough v. Stough, 18 So.3d 601, 604-05 (Fla. 1st DCA 2009) (reversing unequal distribution when factors upon which the trial court relied did not weigh in favor of an unequal distribution), rev. denied, 26 So.3d 582 (Fla.2010). We therefore reverse the decree insofar as it distributes marital property, and remand with directions to treat the entire marital home as marital property — without any special equity in favor of either party — and to effect an equitable distribution of marital property accordingly.
Reversed and remanded with directions.
VAN NORTWICK and CLARK, JJ., concur.
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Ter Keurst v. Ter Keurst, 202 So. 3d 123 (Fla. 2d DCA 2016)…e contain findings reflecting that the trial court conducted the analysis required by section 61.075(1), we must reverse the trial court’s equitable distribution decision concerning the proceeds from the sale of the marital home. See Davis v. Davis, 32 So. 3d 743, 744 (Fla. 1st. DCA 2010) (reversing where “[t]he decree under review contained no findings on statutory factors that could support the unequal distribution of marital property for any reason(s) other than the special equity on which the trial court…
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Navarro v. Navarro, 209 So. 3d 74 (Fla. 1st DCA 2016)…arital assets and liabilities. See § 61.075(1), Fla. Stat. However, if it does so, the court must provide specific written findings justifying the unequal distribution. Id.; Wagner v. Wagner, 61 So. 3d 1141, 1143 (Fla. 1st DCA 2011); Davis v. Davis, 32 So. 3d 743, 744 (Fla. 1st DCA 2010). Here, the supplemental final judgment contains no findings to justify what appears to be an unequal distribution of the marital assets and liabilities. Accordingly, we reverse the distribution of the marital assets and lia…
Authorities Cited
- Swett v. State, 829 So. 2d 901 (Fla. 2002)
- Robertson v. State, 829 So. 2d 901 (Fla. 2002)
- Robertson v. Robertson, 593 So. 2d 491 (Fla. 1991)
- Stough v. Laurel L. Stough, 18 So. 3d 601 (Fla. 1st DCA 2009)
- Wendt v. La Costa Beach Resort Condo. Ass'n, Inc., 26 So. 3d 582 (Fla. 2010)
- Daron Meyer v. Meyer, 25 So. 3d 39 (Fla. 2d DCA 2009)
- Foley v. Hariclia D. Foley, 19 So. 3d 1031 (Fla. 5th DCA 2009)
- Patterson v. Fla. Parole Comm'n, 933 So. 2d 603 (Fla. 1st DCA 2006)
- Swain v. State, 933 So. 2d 603 (Fla. 1st DCA 2006)