JUNE WITLIN, APPELLANT,
v.
MORRIS M. WITLIN, APPELLEE
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In this divorce case, the Florida appellate court reversed the trial court's award of lump sum alimony because the decree was ambiguous regarding whether the wife was receiving her legally presumed one-half interest in jointly held property or an additional alimony award. The court held that property taken in joint names creates a presumption of gift that the husband failed to overcome, entitling the wife to half the jointly held assets as a matter of law.
The court held that when property is taken in joint names, a presumption of gift arises that can only be overcome by clear, positive and unequivocal evidence, which the husband failed to provide. Therefore, the wife is vested as a matter of law with an undivided one-half interest in the jointly held properties. The decree's lump sum alimony provision is ambiguous and susceptible to conflicting interpretations regarding whether it awards the wife her legal one-half interest, the husband's one-half interest as alimony, or both.
“When title to the real estate and stocks was taken in the joint names of the parties, there arose a presumption of a gift of an interest therein to the appellant which could only be overcome by a clear, positive and unequivocal showing that no gift was intended.”
Establishes the legal presumption arising from joint ownership and the burden required to rebut it
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Join FLexlaw to unlock all legal intelligenceThe parties were married for approximately twenty years and accumulated significant assets including real estate and stocks held in their joint names.…
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Appellant, plaintiff and counter-defendant below, seeks review of an adverse final decree of divorce.
On December 22, 1961, plaintiff filed a complaint for separate maintenance seeking custody of the parties’ minor children and temporary and permanent alimony and support money. Defendant answered and counterclaimed for divorce on the ground of extreme cruelty. The counterclaim contained a list of the assets amassed by the parties during approximately twenty years of marriage, consisting, for the most part, of real estate and stocks held in their joint names. It alleged that these assets were acquired solely through the defendant’s efforts without contribution by the plaintiff and placed in the joint names of the parties solely for protective reasons. It further alleged that the defendant had at no time intended to make a gift of these assets or any portion thereof to the plaintiff. The counterclaim concluded with a prayer for divorce, a declaration by the court that the assets held in the joint names of the parties were solely owned by the defendant, and a grant of such reasonable allowances for alimony and support money as the court might deem proper. Trial of the cause culminated in the final decree appealed which granted a divorce in favor of the defendant on his counterclaim. The final decree contained, inter alia, the following provision :
“The Defendant, MORRIS M. WIT-LIN, be and he is hereby ordered to transfer, convey and assign, free and clear, the following described property to the Plaintiff, JUNE WITLIN, as a *71 lump sum alimony award.” [Emphasis supplied]
This was followed by a list of jointly held real estate and stocks, a one-half interest in these being awarded the appellant, plus a 1961 automobile, household goods and $10,000 in cash.
The appellant contends that as a matter of law she is entitled to a one-half interest in the real estate and stocks held in the joint names of the parties and for that reason the award of a one-half interest therein as lump sum alimony was erroneous since it in fact gave her nothing.
When title to the real estate and stocks was taken in the joint names of the parties, there arose a presumption of a gift of an interest therein to the appellant which could only be overcome by a clear, positive and unequivocal showing that no gift was intended. See Anderson v. Anderson, Fla.App.1963, 153 So.2d 24; Lauderdale v. Lauderdale, Fla.App.1957, 96 So.2d 663; Powell v. Metz, Fla.1952, 55 So.2d 915; Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727. We have examined the record and conclude that no such showing was made. Therefore, the appellant is vested as a matter of law, upon dissolution of the marriage, with an undivided one-half interest in these properties. See § 689.15, Fla.Stat., F.S.A.; Bergh v. Bergh, Fla.App.1961, 127 So.2d 481.
With this in mind we have examined that portion of the final decree relative to lump sum alimony and find it ambiguous and susceptible of conflicting interpretations, i. e., (1) the chancellor could have concluded that the property jointly held was solely owned by the appellee and intended to award the appellant a half interest therein, plus the household goods, car and $10,-000 in cash; or (2) the chancellor may have concluded appellant was entitled to a half interest in the properties jointly owned and intended to award her as lump sum alimony the appellee’s half interest therein, plus the household goods, car and cash; or (3) the chancellor could have merely intended to recognize the appellant’s half interest in the property jointly held and in addition award her the household goods, car and cash.
Although we express no views as to whether or not the appellant should be awarded alimony, either lump sum or periodic, and if so, how much, nevertheless, we feel the chancellor should be given the opportunity to reconsider the question in the light of the views expressed herein.
We have examined the appellant’s remaining contentions and conclude that they are without merit.
Accordingly, that portion of the decree appealed (paragraph 3) awarding lump sum alimony is reversed. The cause is remanded with directions to reconsider whether or not an award of lump sum or periodic alimony should be made and if so, in what amount or amounts. In all other respects the decree appealed is affirmed.
Affirmed in part, reversed in part and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Olsen v. Sydney Olsen, 195 So. 2d 864 (Fla. 3d DCA 1967)…egard to the transaction. As a general proposition, a transfer from a husband to a wife is presumed to be a gift. See: Strauss v. Strauss, 148 Fla. 23, 3 So. 2d 727; Anderson v. Anderson, Fla.App.1963, 153 So. 2d 24; Witlin v. Witlin, Fla.App.1963, 153 So. 2d 70; 17 Fla.Jur., Husband and Wife, § 43. The converse of this, however, is not true. A transfer from a wife to a husband of her separate property is not presumed to be a gift, and the burden is on the husband to establish the fact that the receipt of a…
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Goldstein v. Goldstein, 310 So. 2d 361 (Fla. 3d DCA 1975)…ties in the account could be avoided by the husband only by showing by the required quantum of proof that no such gift interest therein for the wife was intended. Lauderdale v. Lauderdale, Fla.App.1957, 96 So. 2d 663; Witlin v. Witlin, Fla.App.1963, 153 So. 2d 70; Calligarich v. Calligarich, Fla.App.1971, 256 So. 2d 60. In the circumstances of this case, the evidence relied upon to negate such intent on the part of the husband was insufficient. Holton v. Holton, supra. We are impelled to conclude that the co…
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Pollak v. Pollak, 282 So. 2d 30 (Fla. 3d DCA 1973)…taken in the joint names of spouses a presumption of a gift of an interest therein to the wife arises and this presumption can only be overcome by a clear, positive and. unequivocal showing that no gift was intended. Witlin v. Witlin, Fla.App.1963, 153 So. 2d 70 and cases cited therein. Further, the conclusive evidence necessary to rebut this presumption is proof of lack of donative intent beyond a reasonable doubt, not merely by preponderance of the evidence. Schoenrock v. Schoenrock, Fla.App.1967, 202 So.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Strauss v. Strauss, 148 Fla. 23 (Fla. 1941)
- Lauderdale v. Lauderdale, 96 So. 2d 663 (Fla. 3d DCA 1957)
- Bergh v. Bergh, 127 So. 2d 481 (Fla. 1st DCA 1961)
- Allie Pittman v. Mehaffey, 127 So. 2d 481 (Fla. 1st DCA 1961)
- Powell v. Metz, 55 So.2d 915 (Fla. 1952)
- Anderson v. Anderson, 153 So. 2d 24 (Fla. 3d DCA 1963)