Smith v. Smith, s. 78-2141

• Decision Date: 26 March 1980
• Docket Number: 79-317,Nos. 78-2141,s. 78-2141
• Citation: 382 So.2d 1242
• Parties: Thomas A. SMITH, Appellant, v. Sharon B. SMITH, Appellee.
• Court: Florida District Court of Appeals

Page 1242

382 So.2d 1242

Thomas A. SMITH, Appellant, v. Sharon B. SMITH, Appellee.

Nos. 78-2141, 79-317.

District Court of Appeal of Florida, Second District.

March 26, 1980.

Philip W. Dann of Baird, Robinson & Dann, St. Petersburg, for appellant.

John M. Edman of Meros, Coit, Edman, Meros & Smith, P. A., St. Petersburg, for appellee.

CAMPBELL, Judge.

The appellant husband seeks review of certain portions of a final judgment of dissolution of marriage and a post-judgment award of attorney's fees and costs to the appellee wife. The trial court specifically retained jurisdiction in its final judgment of dissolution to make an award of attorney's fees and costs.

When the parties married in 1962, their liabilities exceeded their assets by $35,000. They separated in 1977 after three children were born of the marriage: two girls and a boy, aged thirteen, ten and nine at the time of the final judgment.

At the time of the final judgment, the wife was thirty-six years of age and had one and one-half years of college. She was an airline stewardess at the time of the marriage and continued working until the first child was born, approximately one and one-half years thereafter. Since that time she has not worked, functioning instead as a housewife and a mother. She previously obtained a real estate license but has never engaged in that business nor does she express any desire to engage in such business. The wife has experienced certain health problems which limit her activities to some extent.

The husband is an attorney with a limited practice. His principal activities are devoted to several closely-held and interrelated corporations in the food service industry. His gross income in 1977 was $61,500. Exhibits introduced at the final hearing show his net worth to be approximately $2,000,000.

This court's principal concern in this case is the first issue raised by the husband; that is, did the trial court err in concluding that the husband had failed to establish a special equity in three parcels of jointly owned property which the court determined by its final judgment should continue to be jointly owned by the parties. The three parcels involved are a vacant lot in Hawaii, a condominium in Pinellas County and four contiguous, unimproved residential lots located on Clear Avenue in Tampa.

Clearly consistent with the holdings of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), even had the trial judge determined that the husband had a special equity in these properties, he could have, upon a proper finding, still awarded all or a portion of his interest to the wife as additional lump sum alimony. The trial court did not follow that possible avenue of relief, however, but instead denied the husband's request for a finding of a special equity. The husband's sole attempt to establish a special equity was by an attempted showing that the properties were acquired with funds he received from an inheritance unconnected with the marriage.

Thus, we must determine, in light of Ball v. Ball, 335 So.2d 5 (Fla.1976), whether the trial judge properly refused to find a special equity in the husband. In the case of all three properties, the initial acquisition of title was as tenants by the entirety.

There was evidence before the trial court that the husband did receive a $250,000 inheritance from a Martha Kreher probably sometime in 1974. The time of receipt is problematical because we have to use other, non-direct evidence to backtrack to a probable date that the husband received the inheritance. The will of Mrs. Kreher was not offered by either party. No evidence from the probate estate of Mrs. Kreher nor any financial records of the husband were offered to establish the date he actually received the inheritance. He was never specifically asked when he received the inheritance. The only indication in the record as to when it was received comes following a question asked of him by his counsel about the Pinellas County condominium, the first of the three parcels in dispute that we must consider.

The question asked of husband by his counsel, and concerning the condominium was, "It was bought in 1974?" The husband replied, "Yes. And we financed it through the Clearwater Federal Savings and Loan." The husband also stated at that time, "We bought it primarily for the children." When asked a short time later where the sums came from for the purchase of that property he replied only, "That was about the time that I got the money from the inheritance."

The exhibits filed in the proceeding below by the wife show that the condominium was purchased June 27, 1974, for $43,500. Both parties signed a note and mortgage with Clearwater Federal Savings and Loan Association for $34,800 of the purchase price, payable $389.48 per month until paid. In a March 29, 1974, financial statement of the husband filed for the purpose of securing a commitment for that loan, he lists under "other assets" a "vested inheritance" of $250,000.

The wife testified that the condominium was acquired in 1974. When asked how they happened to acquire the condominium she replied, "It was for our family. Our home was small, fairly small, and instead of building right away we decided that it would be a good recreational place for the children to having during the summer months and on the weekends."

Since the will of Mrs. Kreher was not part of the record before the trial court, there exists conflict as to the intent of her bequest because of the differing testimony of the parties. The husband testified that Mrs. Kreher was a friend and confidante of his and that he received the bequest, put it in a savings account in his name alone and used it for various things over a period of time. He further testified that none of it was intended for the wife. The wife testified that Mrs. Kreher was a friend of both parties and visited in their home and they in her home. Both parties testified that she took them both on trips to Switzerland and other places at her expense. The wife further testified that Mrs. Kreher informed both parties they would be receiving a copy of her will in the mail and that the money was supposed to be for both parties. Finally, she testified that the husband told her, "That Martha had...