HENRY F. MARYEA, APPELLANT,
v.
ERMGARD MARYEA, APPELLEE

Fla. 2d DCA | 1975-10-29
No. 75-103
McNULTY, C. J., and HOBSON, J., concur.
320 So. 2d 882 Florida District Court of Appeal, Second District (1975) Positive Treatment
Cited by 6 cases

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Synopsis

In this divorce appeal, the husband challenges the trial court's division of marital property acquired during a two-year marriage using the wife's separate funds. The appeals court affirmed the wife's exclusive ownership of the home and furnishings but reversed as to the certificate of deposit and savings account, holding that a presumption of gift arose as to those assets under Florida's new Constitution.


Holding

The court affirmed that the wife lacked donative intent regarding the home and furnishings, entitling her to exclusive ownership. However, the court reversed as to the certificate of deposit and savings account, holding that the wife's own testimony (stating she placed them in joint names because she 'thought we were going to have a nice marriage' and to make the husband 'feel good') provided insufficient evidence to rebut the presumption of gift arising under Florida's new Constitution.


Headnotes

[1] A rebuttable presumption of a gift to a husband arises when a wife uses her separate funds to acquire property titled as tenants by the entirety.

[2] Lack of donative intent is the evidence required to rebut the presumption of a gift when a wife uses her separate funds to acquire property titled as tenants by the entir…

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Key Quotes

“With respect to transactions occurring subsequent to the adoption of Florida's new Constitution, where a wife's separate funds are used to acquire property in which title is taken as tenants by the entirety, a rebuttable presumption is raised that she intended to make a gift to her husband.”

Establishes the legal standard for presumption of gift in divorce property divisions under Florida's new Constitution.

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Facts & Procedural History

The parties married for approximately two years. The wife, age 56 and in poor health, had assets of about $125,000. The husband, age 49 and in good he…

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Opinion of the Court
GRIMES, Judge.

GRIMES, Judge.

This is an appeal by the husband from a judgment of dissolution of marriage.

The parties were married approximately two years. The wife is fifty-six years old, and her health is such that she can probably no longer work. She has assets worth about $125,000. The husband is forty-nine years old, and he is in good health. He earns about $100 per week. Following their marriage, the wife’s funds were used to purchase a home and furnishings, a $10,000 certificate of deposit and a boat, trailer and motor, all of which were put in the names of both parties. The wife also opened a joint savings account, the balance of which is now $1,800.

The court concluded that the wife had put this property in the names of both parties only because of her mistaken belief that the law in Florida made it necessary for her to place property purchased here in the joint names of the husband and wife. The court concluded that there was no donative intent on the part of the wife with respect to these properties. Thereupon, the wife was granted exclusive ownership of the home and furnishings, the certificate of deposit and the savings account. However, the husband was granted as lump sum alimony the boat, trailer and motor. Certain other gifts previously made by the wife to the husband were confirmed, and the wife was required to contribute $1,000 to the payment of the husband’s attorneys’ fees.

With respect to transactions occurring subsequent to the adoption of Florida’s new Constitution, where a wife’s separate funds are used to acquire property in which title is taken as tenants by the entirety, a rebuttable presumption is raised that she intended to make a gift to her husband. Ball v. Ball, Fla.App.2d, 1974, 303 So. 2d 32.

The evidence relevant to rebutting the presumption is proof of lack of donative intent. Pollak v. Pollak, Fla.App.3d, 1973, 282 So. 2d 30. At one time, the degree of proof required was beyond a reasonable doubt. Pollak v. Pollak, supra; Schoenrock v. Schoenrock, Fla.App.2d, 1967, 202 So. 2d 571. More recently, since these issues have always been exclusively the subject of equity jurisdiction, the burden has been reduced to the extent that the proof must now only be by clear, convincing and satisfactory evidence. Allstate Insurance Company v. Vanater, Fla.1974, 297 So. 2d 293; Abbott v. Abbott, Fla.App.2d, 1974, 297 So. 2d 608.

The record supports the finding of clear and convincing evidence that the wife did not intend to make a gift of an interest in the home and furnishings.

However, the same proof with respect to the certificate of deposit and the savings account is lacking. The wife’s testimony concerning her understanding of the law of community property as it related to these items is equivocal.

Moreover, she affirmatively said that she put the certificate of deposit in both names because she “thought we were going to have a nice marriage” and caused her husband’s name to be included on the savings account in order to make him “feel good.” While we can appreciate the trial judge’s efforts to equitably resolve the conflicting claims, there appears to be insufficient evidence to overcome the presumption of a gift of an interest in the certificate of deposit and the joint savings account.

Therefore, when the marriage was dissolved the husband became entitled to an undivided one-half interest in these properties. Fla.Stat. § 689.15 (1973).

The husband’s contention that the court erred in failing to grant him permanent periodic or additional lump sum alimony is without merit.

Affirmed in part; reversed in part.

McNULTY, C. J., and HOBSON, J., concur.


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Citator

Cited By

  • Deortha A. Moore v. Moore, 401 So. 2d 841 (Fla. 5th DCA 1981)
    …. Marsh, 399 So. 2d 433 (Fla. 5th DCA 1981) (Cowart, J., dissenting). . Atkins v. Atkins, 326 So. 2d 259 (Fla. 4th DCA 1976). . Lieber v. Lieber, 40 So. 2d 111 (Fla.1949); Lindquist v. Lindquist, 351 So. 2d 391 (Fla.2d DCA 1977); Maryea v. Maryea, 320 So. 2d 882 (Fla.2d DCA 1975).…
  • Winterton v. Roma Kaufmann, 504 So. 2d 439 (Fla. 3d DCA 1987)
    …where a husband bestows on his wife a present, unfettered right to withdraw jointly held funds (the bearer bonds), even though the husband is the sole contributor to the funds and exercises joint dominion and control over them. See Maryea v. Maryea, 320 So. 2d 882 (Fla. 2d DCA 1975); Green v. Green, 314 So. 2d 801 (Fla. 3d DCA 1975), cert. denied, 336 So. 2d 600 (Fla.1976). Moreover, because bearer bonds are “negotiable instruments transferable by delivery ... good title to them is presumptively in the holder…
  • Madge P. Ball v. Ball, 335 So. 2d 5 (Fla. 1976)
    …is acquired with the funds generated by one working spouse, while the other spouse performs normal household and child-rearing responsibilities. . See Hegel 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…

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