VERNA H. HELMLY DE JONGE, JOINED BY HER HUSBAND RAY DEJONGE, APPELLANTS,
v.
THEODORE R. WAYNE AND FERN A. WAYNE, HIS WIFE, APPELLEES
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The Florida Supreme Court affirmed that property acquired by a wife before her marriage to her current husband is not homestead property exempt from execution, even though the husband made mortgage payments and performed minor repairs after the marriage.
The property does not qualify as homestead property. A husband's payment of mortgage installments and performance of minor repairs on his wife's separate property, without contribution to acquisition of title and absent an agreement to vest beneficial interest in him, does not make the property homestead exempt, even if they are living on the property together.
“The husband has a right to pay monthly payments on the wife's property and to paint the kitchen and bathroom of such property. Such acts in the absence of anything else will not make such property homestead property even though the husband and wife may be living upon the property.”
Establishes the principal holding that a husband's mortgage payments and minor repairs do not create homestead rights in wife's separate property
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Join FLexlaw to unlock all legal intelligenceVerna Helmly acquired property in January 1950 with her first husband. Following their divorce, she received the property by quitclaim deed in July 19…
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MATHEWS, Justice.
This is an appeal from a final decree finding that certain property was not homestead property.
It appears from the record that the appellant and her former husband acquired the property on January 3, 1950. Later the appellant and her husband were divorced.
On July 16, 1952, Earl T. Helmly, the former husband, quitclaimed the 'property to the appellant Verna H. Helmly, now Mrs. Dejonge.
On January 21, 1953, the appellant Verna H. Helmly married Ray De-jonge and they immediately began living on the property of Mrs. Dejonge, which is the property now in question. It appears from the testimony of the appellants that since their marriage on January 21, 1953, Mr. Dejonge made mortgage payments of $71 per month on the property in question and painted the kitchen and bathroom of the property. A judgment was entered against Mrs. Dejonge in the Civil Court of Record for Dade County, which was recorded with the Clerk of the Circuit Court on November 19, 1953 and November 24, 1953, respectively. It is apparent that the only mortgage payments involved are those made after the marriage of January 21, 1953, until November, 1953.
It was claimed that the property in question was exempt from execution issued under the authority of a judgment above mentioned because the property was homestead property.
The debt in question was not the debt of Ray Dejonge but was the debt of his wife. The property in question was not his property and he furnished no money to acquire title to the property. It was the property of his wife and was acquired by her from her first husband. Ray Dejonge had no connection whatsoever with the property until he married the owner of the property and then his only connection was to live on the property, do minor repairs such as paint the kitchen and bathroom, and pay some monthly mortgage payments on the property.
The record fails to disclose any agreement that the title to the property would be in Mrs. Dejonge and the beneficial interest would be in her husband. The entire question of a homestead appears to be an afterthought after a judgment was obtained against Mrs. Dejonge and execution was issued and levied upon her separate property. The husband has a right to pay monthly payments on the wife’s property and to paint the kitchen and bathroom of such property. Such acts in the absence of anything else will not make such property homestead property even though the husband and wife may be living upon the property.
The appellants rely upon the case of Bessemer Properties, Inc., v. Gamble, 158 Fla. 38, 27 So. 2d 832. In that case the husband had purchased the land and had the deed executed to his wife. The wife made no contribution of any kind to the acquisition of the property. She had not received the property as a gift from her husband. After having acquired the property in the wife’s name, the husband constructed a home on the property and made other expenditures. He was the head of the family. The husband claimed the property as his homestead and his claim was upheld by the Circuit Court and the bill of complaint dismissed, and the action of the Circuit Court was affirmed by this Court. There is no similarity between the two cases.
Other similar cases are cited by the appellants which are not applicable to the facts as shown by the record in this case.
The Circuit Judge heard the testimony personally and entered a final decree in which he said:
“ * * * The Court does further find that Verna H. Helmly Dejonge was not the head of a family at the time judgment was entered against her in the Civil Court of Record in and for Dade County, Florida, nor at the time said Judgment was recorded with the Clerk of this Court, viz., November 19, 1953 and November 24, 1953, respectively, nor has she become the head of a family any time since then. It is evident that Ray Dejonge is and was at all times involved in the proceedings in the Civil Court of Record and in this cause, the head of the family and accordingly, the Court determines that Verna H. Helmly Dejonge is not entitled to Homestead Exemption on the property heretofore levied upon and sold to satisfy the judgment of the mentioned Civil Court of Record, the said property having been her separate property acquired by her prior to her marriage to Ray Dejonge. * * *”
Affirmed.
ROBERTS, C. J., and THOMAS, SE-BRING, HOBSON and DREW, JJ., concur. TERRELL, J., dissents.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Waymon Solomon v. Davis, 100 So. 2d 177 (Fla. 1958)…he appellee’s husband would have been deemed the head of the family when he and appel-lee assumed the normal marital relationship in spite of the fact that she continued to work and they lived upon her separate property. See De Jonge v. Wayne, Fla., 76 So. 2d 273. It is settled that factual dependency is not the sole test of family headship. Caro v. Caro, 45 Fla. 203, 34 So. 309; De Cottes v. Clarkson, 43 Fla. 1, 29 So. 442. Further, the parties’ vigorous assertions that the husband did not in fact “support”…
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Holden v. Est. OF Mary Lee Gardner, 404 So. 2d 1169 (Fla. 1st DCA 1981)…d who was the head of a family was not entitled to a homestead exemption from the forced sale of his wife’s property although he resided with the wife upon her property. C. B. Witt Company v. Moody, 72 Fla. 459, 73 So. 582 (1916); De Jonge v. Wayne, 76 So. 2d 273 (Fla.1954); Abernathy v. Gruppo, 119 So. 2d 398 (Fla. 3d DCA 1960). For descent and distribution purposes under the 1885 Constitution, Florida courts also required that the head of the family own and reside on the property at the time of death befor…
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Abernathy v. Gruppo, 119 So. 2d 398 (Fla. 3d DCA 1960)…d Florida residence do not alone establish exemption. The interest claimed as homestead must be owned by the claimant, or in other words headship and ownership must be joined in one individual.” The significant facts in De Jonge v. Wayne, Fla. 1954, 76 So. 2d 273, are much the same as those in the instant case, which could be disposed of merely on the authority of that case. The decree appealed from is reversed with directions to enter a decree for plaintiffs in accordance with the prayer of the complaint.…
Authorities Cited
- Bessemer Props. v. Robert Howard Gamble et ux., 158 Fla. 38 (Fla. 1946)