FLORENCE K. SAVITEER, APPELLANT,
v.
DOLORES MCADOO, EXECUTRIX OF THE ESTATE OF RAYMOND H. SAVITEER, DECEASED, APPELLEE

Fla. 2d DCA | 1975-04-02
No. 74-906
HOBSON and GRIMES, JJ., concur.
310 So. 2d 28 Florida District Court of Appeal, Second District (1975) Negative Treatment
Cited by 28 cases

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Synopsis

In a dissolution of marriage appeal, the court reversed the trial court's award of a special equity interest to the husband in a barbershop business. The court held that the presumption of a gift arising from funds withdrawn from a joint marital savings account was not rebutted by clear and convincing evidence, and that the trial court's award of exclusive possession of entireties property lacked proper legal basis.


Holding

The court held that the presumption of a gift arising from funds placed in a joint marital account was not rebutted by clear and convincing evidence required to establish a special equity, and therefore the husband's claimed special equity in the barbershop must be reversed. The court also held that granting exclusive possession of entireties property to one party in a dissolution judgment is improper unless it constitutes lump sum alimony or is awarded to a wife with custody of minor children to enforce support obligations.


Headnotes

[1] A court may not grant exclusive possession of entireties property in a dissolution judgment unless it is structured as lump sum alimony or awarded to a custodial parent f…

[2] A judgment of dissolution of marriage converts entireties property into property held as tenants in common.

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Key Quotes

“The granting of exclusive possession of entireties property to one of the parties in a final judgment of dissolution is, we think, anathema unless it either takes the form of a lump sum alimony award or is so awarded to a wife and mother of minor children of whom she has custody so as to enforce the husband-father's obligation to support and maintain the children.”

Establishes the limited circumstances under which a trial court may award exclusive possession of property owned by the entireties in a dissolution judgment.

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Facts & Procedural History

Appellant-wife and husband owned a condominium as tenants by the entireties. The wife purchased a one-half interest in a barbershop using $2,500 withd…

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Opinion of the Court
McNULTY, Chief Judge.

McNULTY, Chief Judge.

Appellant-wife appeals from an order of dissolution of marriage raising five grounds. Of these we need only discuss two.

The first concerns the marital home, a condominium owned by the entireties. The final judgment awarded the husband “exclusive use and possession” of the aforesaid condominium “until his death, remarriage, or until he moves, or until the property is sold, whichever is sooner.” We need not decide, at this juncture, just what sort of an estate, if any, was given to the husband by this award since the husband has died pending this appeal and his executrix has been substituted in his stead. But we think we ought to comment thereon for future guidance.

The granting of exclusive possession of entireties property to one of the parties in a final judgment of dissolution is, we think, anathema unless it either takes the form of a lump sum alimony award or is so awarded to a wife and mother of minor children of whom she has custody so as to enforce the husband-father’s obligation to support and maintain the children. Neither was the case here. Likewise, if it were intended by the final judgment herein that the husband be given a life estate, which both parties seem to think but with which we disagree, it is equally ineffective. We are aware of no rule of law which would authorize the granting of a life estate under the circumstances here absent a finding of special equity. No such finding was made.

In any case, whatever interest was awarded husband, we think it propitious to say here, and we so hold, that the final judgment did not change the statutory legal effect of the judgment of dissolution on the aforesaid entireties property.1 That is to say, upon the judgment of dissolution the parties owned the same as tenants in common.

Concerning, now, appellant’s only reversible point, she contests the finding of a special equity in favor of the husband to the extent of $1,250 in a certain barbershop, a one-half interest of which she purchased and in which she is presently employed as a barber. The only evidence of such special equity is that the wife took $2,500 out of a joint savings account, which had a balance of at least twice that amount at the time, for the downpayment of the shop. It has long been the law in this state that when monies are placed by the husband in a husband-wife joint account a presumption arises of a gift from the husband to the wife, at least to the extent of half the account. There is no evidence in this record in rebuttal of this presumption sufficient, we think, to contravene it at all; but, in any event, there is certainly none sufficient to rebut it to the extent of affirmatively establishing a special equity therein clearly and conclusively as required by our holding in Abbott v. Abbott.2 Appellant is correct on this point. Accordingly, the judgment appealed from should be, and it is hereby, reversed and the cause is remanded for the entry of such further orders as may be necessary consistent herewith.

HOBSON and GRIMES, JJ., concur. . § 689.15, F.S.

. (Fla.App.2d, 1974), 297 So. 2d 608.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (14 total)

  • Duncan v. Duncan, 379 So. 2d 949 (Fla. 1980)
    …nitially accepted jurisdiction based upon conflict in the areas of exclusive possession and special equity. Conflict with Watson v. Watson, 324 So. 2d 126 (Fla. 3d DCA 1976), Ranes v. Ranes, 311 So. 2d 370 (Fla. 2d DCA 1975), and Saviteer v. McAdoo, 310 So. 2d 28 (Fla. 2d DCA 1975), concerning the award of exclusive possession has been resolved in part by our express disapproval of Saviteer and Ranes in McDonald v. McDonald, 368 So. 2d 1283 (Fla.1979). Conflict remains with Ball v. Ball, 335 So. 2d 5 (Fla.19…
  • Wilmer H. McDONALD v. McDONALD, 368 So. 2d 1283 (Fla. 1979)
    …BOYD, Justice. We granted certiorari to review the decision of the district court of appeal, 346 So. 2d 610 (Fla. 1st DCA 1977), because of conflict with Ranes v. Ranes, 311 So. 2d 370 (Fla. 2d DCA 1975) and Saviteer v. McAdoo, 310 So. 2d 28 (Fla. 2d DCA 1975). Art. V, § 3(b)(3), Fla.Const. In Saviteer, a party to a divorce proceeding was awarded exclusive possession of the marital home, previously held as an estate by the entireties. After dissolution of the marriage the parties becam…
  • James W. Church v. Josephine Church, 338 So. 2d 544 (Fla. 3d DCA 1976)
    …marriage have attained the age of majority and in the absence of an agreement between the parties or of the finding of a special equity, it was error to award exclusive possession of the residence to Josephine. See Saviteer v. McAdoo, Fla.App.1975, 310 So. 2d 28. This provision of the judgment is reversed. After a review of the remaining points on appeal, we conclude no reversible error has been made to appear. Thus, the final judgment is affirmed in all other respects. Affirmed in part, reversed in part…

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