MAMIE HARRIS, APPELLANT,
v.
ROBERT HARRIS ET AL., APPELLEES
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In this divorce appeal, a wife challenges the trial court's judgment that granted her a divorce and awarded her alimony, attorney's fees, and a 40% equity in her husband's property, but refused to impose a constructive trust on three parcels of land she claimed were transferred through fraud. The appellate court affirmed, finding the wife failed to meet the clear and convincing evidence standard required to rescind the deeds or establish a constructive trust.
The trial court did not err in refusing to declare a constructive trust or rescind the deeds because the wife failed to carry her burden of proving by clear and convincing evidence the factors giving rise to a constructive trust. Similarly, the trial court did not abuse its discretion in refusing to award permanent alimony.
[1] A party seeking rescission or cancellation of an instrument bears the burden of establishing their right to relief by clear and convincing evidence.
[2] To establish a constructive trust in real property, the claimant must prove the factors giving rise to the trust beyond a reasonable doubt by clear and convincing evidenc…
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Join FLexlaw to unlock all legal intelligence“It is the settled law of this state that one seeking rescission or cancellation of an instrument has the burden of establishing his right to relief by clear and convincing evidence.”
Establishes the legal standard the wife must meet to rescind the deeds
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Join FLexlaw to unlock all legal intelligenceDuring their marriage, the appellant wife and appellee husband jointly accumulated three parcels of land. Prior to separation, both spouses executed d…
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Plaintiff wife has appealed a final judgment granting her a divorce from her defendant husband, Robert Harris; awarding her judgment for past due alimony pen-dente lite, court costs, attorney’s fees, and a special 40% equity in all property owned by her husband at the time of judgment.
By her appeal appellant contends that the trial court erred in refusing to declare a constructive trust upon and set aside deeds executed by her and her husband during their marriage conveying three parcels of land having a substantial value and in which she claims a special equity. She charges also that the trial court abused its discretion in refusing to award her permanent alimony.
The evidence establishes that during their marriage appellant and appellee-hus-band each worked and jointly accumulated the three parcels of land which form the crux of this controversy. At some point prior to their separation appellant and ap-pellee joined in executing deeds whereby one parcel of land in question was conveyed to appellee’s father and the remaining two parcels conveyed to appellee’s brother. Appellant alleged and sought to prove that at the time she executed the deeds in question she was told by appellee that they were mortgages which he proposed to give as security for a loan, but because of her temporary illness at that time, her lack of education and understanding of the legal import of the documents presented to her, she did not realize that she was conveying her equity and right of dower in the property and alienating her title thereto and interest therein. She therefore urges that her signature on the three deeds in question was procured by appellee through fraud and misrepresentation, because of which they should be set aside and the property impressed with a constructive trust in her favor for such equity and interest in the property as the court shall adjudge her to be entitled.
It is the settled law of this state that one seeking rescission or cancellation of an instrument has the burden of establishing his right to relief by clear and convincing evidence.1 Before a constructive trust in real property will be created, the person claiming such interest must prove beyond a reasonable doubt by clear and convincing evidence those factors which give rise to the trust.2 Our review of the *856evidence contained m the record before us, when considered in the light most favorable to the prevailing party, supports the trial court’s conclusion that appellant failed to carry the burden of proof required of her in order to justify the relief sought. The same situation is true with regard to appellant’s contention that the court abused its discretion in refusing to award her permanent alimony.3 The judgment appealed is accordingly affirmed.
SPECTOR, C. J., and WIGGINTON, and JOHNSON, JJ., concur.
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Wieczoreck v. H & H Builders, Inc., 475 So. 2d 227 (Fla. 1985)…ed, 348 U.S. 816, 75 S.Ct. 27, 99 L.Ed. 643 (1954) (reformation of lease); Fletcher v. Moriarty, 62 Fla. 482, 56 So. 437 (1911) (cancellation of lease); Prior v. Davis, 58 Fla. 510, 50 So. 535 (1909) (reformation of deed). See also Harris v. Harris, 260 So. 2d 854 (Fla. 1st DCA 1972) (cancellation of deed); Sobel v. Lobel, 168 So. 2d 195 (Fla. 3d DCA 1964) (reformation of stock sale agreement); Nussey v. Caufield, 146 So. 2d 779 (Fla. 2d DCA 1962) (cancellation of deed and mortgage). [*229] The majority fails…
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Luisa Devers Abreu v. Prospero Amaro and Josefa Amaro, 534 So. 2d 771 (Fla. 3d DCA 1988)…se to a trust by clear and convincing evidence. Hiestand v. Geier, 396 So. 2d 744 (Fla. 3d DCA), rev. denied, 407 So. 2d 1103 (Fla.1981); Kramer v. Freedman, 272 So. 2d 195 (Fla. 3d DCA), cert. discharged, 295 So. 2d 97 (Fla.1973); Harris v. Harris, 260 So. 2d 854 (Fla. 1st DCA 1972). Although Abreu presented ample evidence to support the imposition of either a resulting or a constructive trust, the evidence was equally sufficient — particularly in view of the plaintiff’s heavy burden of proof — to support t…
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Dorman v. Dorman, 332 So. 2d 358 (Fla. 1st DCA 1976)…itle to the proceeds ever vested in the wife. In addition, the evidence discloses that the wife failed to prove beyond a reasonable doubt, by clear and convincing evi [*360] dence those factors giving rise to a constructive trust. Harris v. Harris, 260 So. 2d 854 (Fla.App. 1st, 1972). Following the trial, the wife discharged her attorneys and employed other attorneys to take this appeal. The former attorneys appeal the award of an attorneys’ fee to them, contending that the fee was inadequate. We agree. Un…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gurganious v. State, 172 So. 2d 276 (Fla. 1st DCA 1965)