Amato v. Amato, 90-3282

Decision Date15 April 1992
Docket NumberNo. 90-3282,90-3282
Citation596 So.2d 1243
Parties17 Fla. L. Weekly D984 Gilda AMATO, Appellant, v. Salvatore AMATO, Appellee.
CourtFlorida District Court of Appeals

PER CURIAM.

We grant appellee's motion for rehearing and substitute the following for our original opinion.

This appeal arises from the distribution of property in a dissolution of marriage. Gilda and Salvatore Amato raised four children during their 33 year marriage. One of the children was killed in an automobile accident in 1983. As a result of his death, a separate insurance policy obtained by the son led to the payment of $70,000 in proceeds to his mother, the wife in these proceedings. This separate policy was purchased solely by the deceased son, and not out of his parents' joint funds. The mother, in turn, placed those proceeds directly into the parties' joint checking account. These funds were regularly drawn on over the intervening years by both parties for various purposes.

The wife below contended that the $70,000 was a nonmarital asset and that the trial court erroneously included this amount among the parties' marital assets as part of the distribution of property. At the final hearing, the wife argued that she was entitled to a special equity in the entire $70,000 because the bequest, as such, was nonmarital property. The trial judge responded that he would then award the husband a $23,000 special equity for funds he brought into the marriage.

At that point, the parties stipulated to a division of assets. That split involved setting off half of the $70,000 insurance proceeds against the claimed $23,000 special equity of the husband. The record establishes that wife's attorney specifically agreed to that split. After final judgment so providing was entered by the trial court, however, the wife filed a motion for stay in which she again argued that the entire $70,000 was her separate property. The trial judge denied this motion.

While we might simply affirm on the basis that the wife agreed to the disposition, we have decided to explain why she lost her claim of special equity in the entire $70,000 proceeds. Equitable distributions of property in a dissolution of marriage are controlled by section 61.075, Florida Statutes (1991). What constitutes marital and nonmarital property is specifically defined by section 61.075(5). Subsection (5)(b)2. expressly defines property acquired by noninterspousal bequest as nonmarital. At the same time, subsection (5)(a)3. specifies that interspousal gifts are marital property.

The undisputed facts show that the wife deposited the proceeds into a joint checking account--indeed, the only such account maintained by the parties. There, each party drew upon those funds and others deposited over the years. 1 Florida law is clear that funds so intermingled lose their separate identity and become untraceable. Terreros v. Terreros, 531 So.2d 1058 (Fla. 3d DCA 1988); Vandegrift v. Vandegrift, 477 So.2d 638 (Fla. 5th DCA 1985); and Hottman v. Hottman, 418 So.2d 304 (Fla. 4th DCA 1982). Such intermingling creates a presumption that she made a gift to her husband of an undivided one-half interest in the funds on deposit. Green v. Green, 314 So.2d 801 (Fla. 3d DCA 1975).

What this wife did with the proceeds should be contrasted with what the husband did in Behrman v. Behrman, 376 So.2d 294 (Fla. 2d DCA 1979). There, he placed his inheritance in a separate certificate of deposit account. Although this account was in joint names with his wife, no other funds were ever placed in it. It was never intermingled with the parties' other joint funds, thus avoiding the issue of a presumption of a gift to the wife by intermingling. Here, however, the combination of the deposit and its...

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15 cases
  • Goodwin v. Goodwin
    • United States
    • Pennsylvania Supreme Court
    • August 16, 2022
    ...at 459.The Superior Court next turned to various cases from other jurisdictions for guidance, beginning with Amato v. Amato , 596 So. 2d 1243, 1244-45 (Fla. Dist. Ct. App. 1992) (holding that proceeds of life insurance policy issued to child of marriage was marital property, though proceeds......
  • Goodwin v. Goodwin
    • United States
    • Pennsylvania Superior Court
    • December 14, 2020
    ...behalf of his father. Id. While Pennsylvania courts have not spoken to the relevant issue, our sister states have. 6 In Amato v. Amato , 596 So.2d 1243 (Fla.Ct.App. 1992), a child of the marriage named his mother as the sole beneficiary of a life insurance policy. Amato , 596 So.2d at 1244.......
  • MONDELLO v. TORRES
    • United States
    • Florida District Court of Appeals
    • November 17, 2010
    ...2d DCA 2000) (holding that annuities purchased with commingled funds from a joint account were a marital asset); Amato v. Amato, 596 So.2d 1243, 1245 (Fla. 4th DCA 1992) (holding that proceeds of a life insurance policy received by wife as sole beneficiary, but deposited directly into the p......
  • Mondello v. Torres
    • United States
    • Florida District Court of Appeals
    • July 21, 2010
    ...2d DCA 2000) (holding that annuities purchased with commingled funds from a joint account were a marital asset); Amato v. Amato, 596 So. 2d 1243, 1245 (Fla. 4th DCA 1992) (holding that proceeds of a life insurance policy received by wife as sole beneficiary, but deposited directly into the ......
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7 books & journal articles
  • § 7.08 Characterizing Life Insurance
    • United States
    • Full Court Press Divorce, Separation and the Distribution of Property Title CHAPTER 7 Property Acquired or Improved with Both Separate and Marital Property
    • Invalid date
    ...101 Idaho 213, 611 P.2d 133 (1980). See also: Colorado: In re Marriage of Sharp, 823 P.2d 1387 (Col. App. 1991). Florida: Amato v. Amato, 596 So.2d 1243 (Fla. App. 1992). Iowa: Marriage of Goodwin, 606 N.W.2d 315 (Iowa 2000). Louisiana: Fowler v. Fowler, 861 So.2d 181 (La. 2003). Kentucky: ......
  • § 11.03 Transmutation of Property by Commingling
    • United States
    • Full Court Press Divorce, Separation and the Distribution of Property Title CHAPTER 11 Transmutation - A Change in the Character of Property After Acquisition
    • Invalid date
    ...(Ala. App. 1989). Florida: Hay v. Hay, 944 So.2d 1043 (Fla. App. 2006); Baird v. Baird, 696 So.2d 844 (Fla. App. 1997); Amato v. Amato, 596 So.2d 1243 (Fla. App. 1992) (commingling creates a rebuttable presumption of gift); Vandegrift v. Vandegrift, 477 So.2d 638 (Fla. App. 1985); Walser v.......
  • Special equity and unequal distribution of assets.
    • United States
    • Florida Bar Journal Vol. 75 No. 10, November 2001
    • November 1, 2001
    ...for down spouse's contribution payment and for repairs No Special Equity Found Amato v. Amato, Life insurance proceeds No special equity 596 So. 2d 1243 placed in joint because no proof that (Fla. 4th DCA 1992) checking account gift not intended Baird v. Baird, Funds put into marital No spe......
  • Equitable distribution and property issues
    • United States
    • James Publishing Practical Law Books Florida Family Law and Practice - Volume 1
    • April 30, 2022
    ...a presumption is created that the spouse made a gift to the other spouse of an undivided half interest in the funds. [ Amato v. Amato, 596 So. 2d 1243 (Fla. 4th DCA 1992) (jointly titled bank accounts are presumed to be marital assets; commingling non-marital funds in joint account is viewe......
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