MYRON JAY SINGER, APPELLANT,
v.
ELEANOR B. SINGER, APPELLEE
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In this dissolution of marriage appeal, the husband challenges the trial court's award of the wife's special equities through transfer of jointly owned property, the denial of his partition counterclaim, and the alimony and child support awards. The court reverses the property award and partition denial but affirms the alimony and support payments.
The court reversed the property award because the wife failed to establish a special equity in the home through tracing of funds, and reversed the denial of the partition counterclaim, ordering that the home be sold with the wife receiving her special equity from the husband's proceeds. The court affirmed the alimony and child support awards, finding no abuse of discretion despite their substantial nature.
[1] A party claiming a special equity in property must establish their legal or equitable interest therein to the exclusion of a reasonable doubt.
[2] A party seeking to establish a special equity in jointly owned marital property must present evidence tracing their separate funds into the acquisition of that property.
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Join FLexlaw to unlock all legal intelligence“The burden of proof is upon the Wife to sustain a special equity and to establish the same to the exclusion of a reasonable doubt that she had acquired either a legal or equitable interest in the property.”
Establishes the standard for proving a special equity in marital property through fund tracing.
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Join FLexlaw to unlock all legal intelligenceThe wife established two special equities totaling $24,276: $7,323 from interior decorating work and $16,953 from insurance proceeds for stolen jewelr…
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This is an appeal by the Husband from certain financial provisions in a Final Judgment of Dissolution of Marriage. The testimony discloses and the Judgment reflects that the Wife established two special equities; one in the sum of $7,323 which was earned by her for certain interior decorating work not at the marital home and the other in the sum of $16,953 which belonged to the Wife derived from the proceeds of an insurance policy for certain jewelry stolen from her which money was used by the Husband for business purposes. The trial judge awarded the Wife the Husband’s equity in the jointly owned home and furnishings in satisfaction of such special equities found due to the Wife and satisfied the special equities by transfer of the property to her. The Husband argues error to which we agree. There is no evidence either to support any tracing of funds of the Wife into the acquisition of the home and furnishings or is there any contention that such is the case. The burden of proof is upon the Wife to sustain a special equity and to establish the same to the exclusion of a reasonable doubt that she had acquired either a legal or equitable interest in the property. See Lindley v. Lindley, Fla.1955, 84 So.2d 17, and Tanner v. Tanner, Fla.App.1967, 194 So.2d 702.
The Husband further assigned as error that the Court failed to grant the Husband’s counterclaim for partition of the jointly owned home and furnishings of the parties and argues that such home of the approximate value of $180,000 exclusive of furnishings, with mortgage payments, taxes and maintenance of some $13,-000 a year is unnecessary and that such *733home should be sold pursuant to statutory provisions of the Florida Statutes. In view of these facts and further that the Wife did not establish a special equity in the jointly owned home and furnishings, the trial judge should have granted the Husband’s counterclaim for partition and ordered the home sold. This procedure is proper in an action for dissolution. See Lubarr v. Lubarr, Fla.App.1967, 199 So.2d 123. After partition the Wife should receive the sum established as 'her special equity out of the Husband’s proceeds of sale of the home.
The Wife was awarded the sum of $750 per month as and for alimony and the sum of $1,750 per month as and for support money for the three minor children of the parties, such sum to be prorated at 331/3 per cent for each child. The Husband argues that the trial judge abused his discretion in the award of alimony and support payments in light of the nature and extent of the Husband’s available income and of his limited capital assets.
One challenging an alimony and support money award for excessiveness has the burden of clearly demonstrating an abuse of discretion by the trial judge. See Sommers v. Sommers, Fla.App.1964, 169 So.2d 496; Sommers v. Sommers, Fla.App.1966, 183 So.2d 744; and Levison v. Levison, Fla.App.1967, 193 So.2d 630. While the amount of alimony and support money awarded in this case appears substantial based on the Husband’s present income, there was conflicting evidence as to the Husband’s apparent income and capital assets which the trial judge resolved in favor of the Wife. We do not find that there was an abuse of discretion by the trial judge.
This cause is, therefore, remanded with directions consistent with this opinion.
Affirmed in part and reversed in part.
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Citator
Cited By (13 total)
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Storer v. Storer, 353 So. 2d 152 (Fla. 3d DCA 1977)…quities require it. Yandell v. Yandell, supra. The burden of proof is on the wife to sustain a special equity and to establish to the exclusion of a reasonable doubt that she had acquired a legal or equitable title in the property. Singer v. Singer, 262 So. 2d 731 (Fla. 3d DCA 1972). No special equity has been shown by Mrs. Storer. On the contrary, the record reflects that Mr. Storer was the sole owner of the home and its contents prior to and during the marriage. Mrs. Storer failed to demonstrate that she m…
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Rebia Gladys Sharpe v. Sharpe, 267 So. 2d 665 (Fla. 3d DCA 1972)…ony at all) was not proper under the established guidelines. An appellate court will not interfere in the determination of the amount of alimony in the absence of a clear showing of an abuse of discretion. Singer v. Singer, Fla.App.1972, 3rd D.C.A., 262 So. 2d 731, filed May 30, 1972; Mufson v. Mufson, Fla.App.1971, 245 So. 2d 110; Tomaino v. Martz, Fla.App.1965, 170 So. 2d 468. However, we think that such a showing appears upon the undisputed facts of this record. Cf. Preston v. Preston, Fla. App.1968, 216 S…1 / 2
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Dash v. Dash, 284 So. 2d 407 (Fla. 3d DCA 1973)…The trial court in the cause sub judice entered his order awarding Mrs. Dash rehabilitative alimony. We realize that an alimony award will not be disturbed in the absence of a clear showing of an abuse of discretion. Singer v. Singer, Fla.App.1972, 262 So. 2d 731; Royal v. Royal, Fla.App.1972, 263 So. 2d 277; Sharpe v. Sharpe, Fla.App.1972, 267 So. 2d 665. However, the record in this cause clearly establishes that the alimony award was not adequate. Appellant, at fifty-five years of age, had no history of e…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Forrest B. Lindley v. Lindley, 84 So. 2d 17 (Fla. 1955)
- Tanner v. Tanner, 194 So. 2d 702 (Fla. 2d DCA 1967)
- Melvyne Wahnish Sommers v. Sommers, 183 So. 2d 744 (Fla. 3d DCA 1966)
- Lubarr v. Lubarr, 199 So. 2d 123 (Fla. 3d DCA 1967)
- O. Hoke Roberts et ux. v. John J. Knoll et ux., 169 So. 2d 496 (Fla. 2d DCA 1964)
- Levison v. Levison, 193 So. 2d 630 (Fla. 3d DCA 1967)