LENORE TOBY, APPELLANT,
v.
ARNOLD TOBY, APPELLEE

Fla. 3d DCA | 1973-07-10
No. 72-828
Before PEARSON and CHARLES CARROLL, JJ, and CREWS, JOHN J., Associate Judge.
280 So. 2d 523 Florida District Court of Appeal, Third District (1973) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that the trial court did not err in awarding attorney's fees or in failing to adjudicate rights in property held by the entirety, but erred in failing to award the wife a greater interest in the corporation's stock.


Headnotes

[1] An award of attorney's fees is not an abuse of discretion where the record lacks evidence of the work performed or the reasonableness of the fee, but contains sufficient…

[2] A trial court errs by adjudicating rights in property held by the entirety upon a petition for dissolution when the pleadings provide no basis for such relief.

Previewing 2 of 5 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

Facts & Procedural History

The parties divorced, and the wife sought attorney's fees, division of property held by the entirety, and a greater share of stock in a corporation pu…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
CREWS, JOHN J., Associate Judge.

*524CREWS, JOHN J., Associate Judge.

This is an appeal from a final judgment granting a dissolution of marriage. The Appellant raises three issues:

1. The trial court committed an abuse of discretion in awarding only $500 as attorney’s fees for the wife.

2. The trial court erred in failing to completely adjudicate the parties’ respective rights in a trust in realty.

3. The trial court erred in failing to award the Appellant-wife a one-half interest in Pan American Electroplating Corporation.

We affirm the trial court respecting the first two issues, but remand for further proceedings the latter.

As to attorney fees, the Appellant has failed to meet the burden of showing a clear abuse of judicial discretion. Smith v. Smith, 151 So.2d 448 (Fla.3d D.C.A.1963).

The record is void of any evidence touching on the amount of work performed, or the reasonableness of a fee. There was sufficient evidence, however, of the parties’ net worth and income to sustain the trial court’s award.

This court determined in Williams v. Williams, 177 So.2d 865:

“It is not the function of an appellate court to substitute its judgment for that of a chancellor in the awarding of attorney’s fees.”

Point two (2) was raised below by the Appellant in her answer which merely alleged that the parties jointly owned certain tangible and intangible personal property which required division by the court.

Section 689.15 of the Florida Statutes, F.S.A., provides that in cases of estates by the entirety, the tenants, upon divorce, shall become tenants in common. In Massey v. Massey, 205 So.2d 1 (3d D.C.A.Fla.1967), Valentine v. Valentine, 45 So.2d 885 (Fla.1950), it was held that once the estate by the entirety becomes an estate in common upon the entry of a judgment of divorce, it is hereafter for the parties to determine whether the property should be partitioned, or whether one party should purchase the interest of the other. The Appellant’s answer requesting the division of certain properties does not meet the requirements for partition set forth in Florida Statute § 64.091, F.S.A. In Pearson v. Pearson, 213 So.2d 304 (3d D.C.A.Fla.1968), it was held that it is reversible error for a chancellor to adjudicate, upon a petition for dissolution, rights in property held by the entirety in which the pleadings afforded no basis for relief. Accordingly, the refusal of the court below to order division of the property did not constitute error.

With respect to the third issue of the distribution of shares of stock in Pan American Electroplating Corporation, it is clear that prior to moving to Dade County the parties owned a home in their joint names in Puerto Rico. This home was sold with the net proceeds, along with other moneys earned by the Appellee, being placed in a joint bank account in Dade County.

The parties treated their moneys as belonging to both. The husband answered “Yes” to the question, “Her moneys were your money, and your moneys were hers?”

With $15,000 withdrawn from their bank account, the down payment was made on the purchase price of the Pan Am. Electroplating Corporation. Both Appellant and Appellee as individuals signed the $31,000 note for the remainder of the purchase price which was also guaranteed by both of them individually. Additionally, both signed the Security Agreement. The note was subsequently fully paid by the Corporation.

Upon formation of the Corporation, Pan American Electroplating Corporation, to continue the business purchased, the Appel-*525lee received 99 shares in his name with 1 share being allotted to the Appellant.

The wife complained about this arrangement, but the husband viewed her statements as being more or less a joke, if not hilarious. It was not, however, then nor later amusing to the Appellant.

She contended below and here by reason of the foregoing facts that she should be awarded forty-nine shares so that she would own one-half of all outstanding shares.

We do not agree.

The Appellant never performed any work for the Corporation; neither did she contribute anything to it other than as herein stated. Upon that record the trial court left the parties in their stock ownership as it found them.

In Williams, supra, the Chancellor’s award to the wife of an interest in her husband’s property was affirmed on one or both of two theories, the one material here being:

“That the properties were acquired from funds received in the sale of a home residence which was originally in the name of both parties.”

In Welsh v. Welsh, 160 Fla.380, 35 So.2d 6, the parties to a divorce suit had a joint bank account in the approximate sum of $2,800 which was paid on a home with title thereto taken in the name of one of the husband’s corporations which later conveyed the property to the husband.

The Chancellor in that case concluded that the corporation held the property as trustee for the parties and when the corporation conveyed it back to the husband, then the parties owned the home as an estate by the entireties or as tenants in common.

The Supreme Court of Florida viewed the issue on this point differently, holding that the husband should pay the wife the sum of $1,400, with interest, this being one-half of the sum taken from their joint account and paid as a first payment on the home.

We think the learned Chancellor in the instant case was correct in not dividing the stock in issue equally, but it is our view and holding that the Appellee should pay the Appellant $7,500 with interest, provided she elects to assign her one share of stock to him.

In the alternative, the court should, upon motion of Appellant, ascertain the value of her share as of the time of the entry of the final judgment, and if the value be less than $7,500, award her the difference in money with interest.

Of course, if such value is more than $7,500, she may elect to keep that which is already in her name.

This cause is remanded for further proceedings in conformity with this opinion.

Affirmed in part, and reversed in part and remanded.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Niemann v. Niemann, 294 So. 2d 415 (Fla. 4th DCA 1974)
    …of the parties must plead a right thereto in accordance with Chapter 64, F.S. 1971, F.S.A. A prayer for a division of the property of the parties is insufficient. Wilkerson v. Wilkerson, Fla.App.1965, 179 So. 2d 592, 598; Toby v. Toby, Fla.App.1973, 280 So. 2d 523. That requirement is no idle whim since partition involves certain rights, such as the right to partition in kind, a determination of the respective interests of the parties in the property, and the proper distribution of the proceeds from a sale. I…
  • Zeller v. Zeller, 396 So. 2d 1177 (Fla. 4th DCA 1981)
    …of the parties must plead a right thereto in accordance with Chapter 64, F.S.1971, F.S.A. A prayer for a division of the property of the parties is insufficient. Wilkerson v. Wilkerson, Fla.App.1965, 179 So. 2d 592, 598; Toby v. Toby, Fla.App.1973, 280 So. 2d 523. That requirement is no idle whim since partition involves certain rights, such as the right to partition in kind, a determination of the respective interests of the parties in the property, and the proper distribution of the proceeds from a sale. I…
  • Tichenor v. Rabun N. Tichenor, 342 So. 2d 845 (Fla. 2d DCA 1977)
    …t’s third point has merit and requires a modification of the judgment. About two weeks before the parties separated, certain steel buildings were purchased for $19,000 and put in the name of the appellant. Pursuant to the rationale of Toby v. Toby, 280 So. 2d 523 (Fla. 3d DCA 1973), and on the premise that the purchase money came from a joint account, the court determined that the appellee was entitled to be reimbursed for one-half the cost of the buildings. Yet, the record only shows that $3,400 of the purc…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw