JOHN M. BICKERSTAFF, APPELLANT,
v.
HOPE E. BICKERSTAFF, APPELLEE
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In a dissolution of marriage case, the husband appealed the trial court's failure to recognize a special equity in real property held as tenants by the entireties. The appellate court reversed, holding that the husband's contribution of inherited funds as the entire down payment, combined with his sole payment of all subsequent expenses and his lack of donative intent, created a special equity despite the property being titled in both parties' names.
A special equity is created in the property where one spouse contributes all consideration from a source clearly unconnected with the marital relationship and there is no credible evidence of donative intent, even if the property is titled in both names and the other spouse testifies to a perceived gift.
[1] A special equity in property held as tenants by the entireties is created when one spouse furnishes all consideration for the property from a source clearly unconnected w…
[2] A spouse's testimony that the other spouse intended a gift of property held as tenants by the entireties does not necessarily obliterate a special equity established by u…
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Join FLexlaw to unlock all legal intelligence“a special equity is created in property "by an unrebutted showing . that all of the consideration for property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship."”
Establishes the legal standard for creating a special equity in property held as tenants by the entireties in dissolution proceedings.
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Join FLexlaw to unlock all legal intelligenceThe husband and wife owned a house as tenants by the entireties. The husband furnished the entire down payment from funds he inherited separately from…
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PER CURIAM.
Husband appeals here the trial court’s failure to grant him a special equity in a house owned by the parties as tenants by the entireties in a dissolution proceeding.
We find merit in his argument and reverse. We are cognizant of the Florida Supreme Court’s pronouncement in Ball v. Ball, 335 So. 2d 5 (Fla.1976), that generally “record title speaks for itself” in such situations and the property becomes a tenancy in common upon dissolution.
However, we are also aware of other language in that opinion holding that a special equity is created in property “by an unrebutted showing . that all of the consideration for property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship.” The evidence showed clearly in this case that the husband furnished the entire down payment for the house in question from funds he had inherited separately from his mother. From there on the house was self-supporting as a rental property and wife made absolutely no financial contributions to it. Husband paid all of the mortgage payments, property taxes, insurance premiums and repair costs. He testified that he had played no part in the preparation of the deed which had titled the property in both parties’ names and had not intended a gift of the property to the wife. Wife testified that it had always been her understanding that husband had intended a gift to her when he purchased the property. But as this court recently stated in Merrill v. Merrill, 357 So. 2d 792 (Fla. 1st DCA 1978): “We cannot read Ball v. Ball ... as holding that a word or two of testimony by the recipient spouse, to the effect that the other intended a gift, obliterates the special equity resulting from an unrebutted showing that the grantor spouse acquired the property from sources entirely independent of the marriage.” We do not read the court’s statement in Merrill that the question of donative intent is for the chancellor as binding us to a trial court’s ruling where as here there is no credible evidence of such an intent below. Husband was entitled to the special equity under the evidence presented here.
Wife’s cross appeal disputing the adequacy of a $5,000 attorney’s fee award which her attorney had already accepted is without merit.
The judgment appealed by the husband is reversed. The judgment cross appealed by the wife is affirmed.
Wife’s motion for appellate attorney’s fees is denied.
MILLS, Acting C. J., and MELVIN and ERVIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Laws v. Laws, 364 So. 2d 798 (Fla. 4th DCA 1978)…tent is one of a preponderance of the credible evidence . . . but the finding of the chancellor as to donative intent is not binding on the appellate court where “. . . there is no credible evidence of such intent below.” Bickerstaff v. Bickerstaff, 358 So. 2d 590 (Fla. 1st DCA 1978). All of the evidence relative to dona-tive intent, except the bald assertion of the Wife, clearly and unequivocally shows that the Wife did intend to make a gift to her husband of an interest in the property at the time she exec…
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Alina Portuondo v. Portuondo, 570 So. 2d 1338 (Fla. 3d DCA 1990)…CA 1978). Therefore, if there is no credible evidence of such intent below, the finding of the trial judge as to donative intent is not binding on the appellate court. See Laws v. Laws, 364 So. 2d 798 (Fla. 4th DCA 1978); Bickerstaff v, Bickerstaff, 358 So. 2d 590 (Fla. 1st DCA), cert. denied, 365 So. 2d 709 (Fla.1978). In the present case, the evidence clearly and unequivocally shows that the husband’s parents did intend to make a gift to both the husband and the wife. The husband’s father’s testimony that n…
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Kattie Sue Lawless v. Lawless, 362 So. 2d 302 (Fla. 2d DCA 1978)…was analyzed by this court in Powell v. Powell, 349 So. 2d 841 (Fla. 2d DCA 1977). . Two recent cases applying the Ball rule involving cash derived by one party from a source unconnected with the marital relationship are Bickerstaff v. Bickerstaff, 358 So. 2d 590 (Fla. 1st DCA 1978); Malkemes v. Malkemes, 357 So. 2d 223 (Fla. 2d DCA 1978).…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Shannon v. State, 335 So. 2d 5 (Fla. 1976)
- Merrill v. Merrill, 357 So. 2d 792 (Fla. 1st DCA 1978)