DAVID A. TIFFANY, APPELLANT,
v.
BARBARA A. TIFFANY, APPELLEE

Fla. 4th DCA | 1975-01-10
No. 74-296
MAGER and DOWNEY, JJ., concur.
305 So. 2d 798 Florida District Court of Appeal, Fourth District (1975) Positive Treatment
Cited by 10 cases

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Synopsis

In a dissolution of marriage proceeding, the Fourth District Court of Appeal affirmed in part and reversed in part the trial court's award of the marital home to the wife, holding that the wife failed to overcome the presumption that her financial contribution to property titled in their joint names was a gift to her husband.


Holding

The court affirmed the attorney's fee award and the coin collection award but reversed the award of the marital home to the wife. The court held that the wife failed to overcome the presumption that her financial contribution to jointly titled property constituted a gift to the husband. On remand, the trial court may reconsider child support and consider whether the wife should have exclusive possession of the home for shelter of the minor child.


Headnotes

[1] A trial court may order one party to pay attorney's fees and costs to the other party in a dissolution of marriage proceeding, considering the financial resources of both…

[2] A coin collection started by a spouse before marriage and enlarged during the marriage may be considered the separate property of that spouse if sufficient evidence suppo…

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Key Quotes

“The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for the attorney's fees, suit money, and the costs to the other party of maintaining or defending any proceeding under this act, including enforcement and modification proceedings.”

Establishes the statutory authority for trial court to order contribution toward opposing party's attorney's fees in dissolution cases.

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Facts & Procedural History

Prior to their 1968 marriage, the parties agreed to build a house in Broward County using funds from the wife's life insurance benefits from her first…

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Opinion of the Court
ALDERMAN, James E., Associate Judge.

ALDERMAN, James E., Associate Judge.

Final Judgment of dissolution of marriage was entered by the trial court below. Appellant-husband appeals alleging that the trial judge erred in requiring him to pay a part of his wife’s attorney’s fee and court costs. He also contends that the trial court erred in awarding to his wife, as special equity, his interest in the marital home, joint bank accounts and a coin collection.

ATTORNEY’S FEE

Appellant was ordered to make a contribution in the sum of $750.00 towards appellee’s attorney’s fee and to pay court costs of $55.50.

Florida Statutes (1973), Section 61.16 provides as follows:

“The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for the attorney’s fees, suit money, and the costs to the other party of maintaining or defending any proceeding under this act, including enforcement and modification proceedings. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.”

The undisputed testimony before the trial judge was that a reasonable fee for the services of appellee’s attorney would be $1100.00. At the time of trial, appellee was earning between $50.00 and $60.00 a week, while the appellant was earning from $160.00 to $170.00 per week. Although appellee was not indigent and had other assets from which she might have paid her attorney’s fee and court costs, after considering the financial resources of both parties, we believe that the trial judge did not abuse his discretion in requiring appellant to contribute $750.00 towards appellee’s attorney’s fee, and pay court costs of $55.50.

THE COIN COLLECTION

The trial judge awarded ownership of a coin collection to appellee. Her testimony was that she started the collection prior to her marriage to appellant. During the marriage the collection was enlarged, but she contends that the collection remained her separate property. We find the evidence sufficient to support the trial judge’s conclusion that the coin collection was owned by appellee.

JOINT BANK ACCOUNTS

Appellee was awarded a special equity in appellant’s interest in all bank accounts in the joint ownership of the parties. However the record indicates that at the time of trial there were no joint accounts. When the parties returned to Brevard County in 1973, a joint account was opened in the First National Bank of Merritt Island. Part of the proceeds from the sale of a jointly owned home in Broward County was deposited in this account. Appellee testified that prior to their separation, appellant on various occasions withdrew from the account approximately $5,950.00. At the time of separation, appellee withdrew the remaining balance of approximately $5,400.00. The trial judge’s award of a special equity to appellee in appellant’s interest in all bank accounts in the joint ownership of the parties makes no reference to amounts. Since there was no joint account in existence between the parties at the time the Final Judgment was entered, it appears that the purpose and effect of this award was to confirm and approve the self-help withdrawal of the remaining balance made by appellee at the time of separation. After reviewing the testimony of the parties concerning the joint account, we conclude that no error was committed.

THE MARITAL HOME

Appellee was awarded a special equity in appellant’s interest in the marital residence and appellant was ordered to execute and deliver an instrument sufficient to convey to appellee all of his interest in the former marital home.

Prior to their marriage in 1968, the parties by mutual agreement made arrangements to build a house in Broward County. The funds used for the initial construction and down payment came from life insurance benefits received by appellee as a result of the death of her first husband. This house was first deeded to appellee in her sole name, but after her marriage to appellant, title was placed in their joint names as tenants by the entireties. In June, 1973, the house in Broward County was sold with a considerable increase in value from the date of purchase. Part of the money from this sale was used to purchase the marital home in Brevard County, title to which was also taken in the joint names of the parties as tenants by the en-tireties.

Appellant, conceding that appellee provided the funds for the initial construction of the first home in Broward County, contends that the money contributed by appel-lee for purchase of this property is presumed to be a gift, and if not rebutted by evidence to the contrary, requires upon divorce that the jointly held property be equally divided between the parties as tenants in common. Davis v. Davis, Fla.App., 1973, 282 So. 2d 665; F.S.A. § 689.15. Appellee on the other hand alleged that she did not intend to make a gift to appellant.

The burden of proof is upon the wife in this case to overcome the presumption of a gift. Hanzelik v. Hanzelik, Fla. App.1974, 294 So. 2d 116. This she has failed to do. Appellee testified concerning the first home in Broward County as follows :

“Q. (By Mr. Moss) When the deed was first prepared at the completion of the house, whose name was the house titled in?

A. Well, at first it was in my name, Barbara A. Gibson; then, after we were married I had another attorney draw another one in both our names.

Q. So you had it changed from your prior name to the name of both you and Mr. Tiffany’s name as tenants by the entirety and as husband and wife ?

A. Yes.”

(Trial Transcript Page 54)

“Q. (By Mr. Goldman) At whose instance or suggestion, or insistance was a conveyance made of that home into your joint names?

A. I don’t know if there was an insistence by anyone, it was just a mutual agreement.”

(Trial Transcript Page 84)

As previously held by this court in Steinhauer v. Steinhauer, Fla.App.1971, 252 So. 2d 825, in determining whether a special equity exists in favor of one spouse in property formerly held by them as tenants by the entireties, each party is entitled to the presumption that their contributions are gifts to each other. Financial contributions by either spouse should be interpreted as being within the realm of ordinary marital duties and the contribution is prima facie presumed to be a gift. Appel-lee having failed to overcome this presumption we must hold that the trial court erred in awarding appellant’s interest in the marital home to appellee.

Accordingly, the Judgment of the trial court is affirmed in part and reversed in part, and the cause remanded for further proceedings not inconsistent with this opinion. Nothing contained herein shall preclude the trial court from reviewing and revising the award heretofore made to the wife for child support inasmuch as such award may have been gauged or influenced by the award of the entire marital dwelling to the wife. The trial court may also consider whether appellee, in order to provide shelter for the minor child of the parties, should have exclusive possession of the marital home until such time as said child is no longer dependent. In such event the trial judge may determine, as between the parties, who should pay the mortgage payments, taxes, insurance, repairs and other costs of maintaining the residence as a home of the minor child.

MAGER and DOWNEY, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Robertson v. Robertson, 593 So. 2d 491 (Fla. 1991)
    …ction appears to undo the “no gift” presumption evolved by Ball v. Ball, 335 So. 2d 5 (Fla.1976); and returns the state of Florida’s law on this point back to where it was in Davis v. Davis, 282 So. 2d 655 (Fla. 4th DCA 1973) and Tiffany v. Tiffany, 305 So. 2d 798 (Fla. 4th DCA 1975). Under this statute, the donor spouse has the burden of proving no gift was intended. We easily conclude that Mark failed to carry the burden of proof on this issue. 15 F.L.W. at 2564-65 (footnote omitted). The predicate for ou…
  • Straley v. Frank, 585 So. 2d 334 (Fla. 2d DCA 1991)
    …ouse. The statute could be interpreted as placing the burden of proving no gift was intended on the donor spouse, as opposed to the donee spouse as Ball does. That would put Florida back to the older line of cases prior to Ball. Tiffany v. Tiffany, 305 So. 2d 798 (Fla. 4th DCA 1975); Davis v. Davis, 282 So. 2d 655 (Fla. 4th DCA 1973). However, we agree final construction of the statute rests with the Florida Supreme Court. But that too is just a matter of time. So far as our research has revealed, no other a…
  • Madge P. Ball v. Ball, 335 So. 2d 5 (Fla. 1976)
    …el v. Hegel, supra; Mays v. Mays, supra, and Jones v. Jones, supra. . See, Maryea v. Maryea, 320 So. 2d 882 (Fla.App. 2d 1975); Tonn v. Tonn, 314 So. 2d 157 (Fla.App. 4th), cert. dism’d 324 So. 2d 93, filed Nov. 25, 1975 (Fla.); Tiffany v. Tiffany, 305 So. 2d 798 (Fla.App. 4th 1975); Hanzelik v. Hanzelik, 294 So. 2d 116 (Fla.App. 4th 1974); Davis v. Davis, 282 So. 2d 655 (Fla.App. 4th 1973); Calligarich v. Calligarich, 256 So. 2d 60 (Fla.App. 4th 1971) ; Steinhauer v. Steinhauer, 252 So. 2d 825 (Fla.App. 4th…

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