Archer v. Archer, 97-1821

Decision Date19 June 1998
Docket NumberNo. 97-1821,97-1821
Citation712 So.2d 1198
Parties23 Fla. L. Weekly D1495 Sandra E. ARCHER, Appellant, v. Clyde W. ARCHER, Appellee.
CourtFlorida District Court of Appeals

Joan Stefanec Briggs, Daytona Beach, for Appellant.

Richard J. D'Amico, Daytona Beach, for Appellee.

PETERSON, Judge.

Sandra E. Archer, the former wife, appeals the final judgment of dissolution of marriage which treated as marital assets certain real and personal property she acquired from her mother. The former wife's mother had created joint tenancies with rights of survivorship with the former wife in her home and a money management account. After the mother's death, the former wife conveyed the real property to her then husband and herself as tenants by the entireties. She also transferred the personal property into a joint account.

The personal property acquired from the former wife's mother was a Merrill Lynch Cash Management Account (CMA). Sometime during the marriage and after her mother's death, the former wife changed the ownership description of the CMA account to a joint account with her former husband. The CMA account consisted of a money fund certificates of deposit, Ginnie Mae mortgage securities and stocks. The specific stocks were AT & T, Brunswick Corp., FPL Group, General Electric and Aegis Industries. The CMA monthly statements provided detailed summaries of income and current values for, and additions and withdrawals to, each of the several assets within the account. Sometime after the joint tenancy between the spouses was created, the parties began using the CMA account as a checking account to purchase anything from "food to materials to gas." The former husband testified, however, that with respect to the securities and stock, each had remained intact during the marriage since the death of the former wife's mother. No alterations had been made to these investments and any change in their value, with the exception of routine amortization of the Ginnie Mae's, was solely a result of market fluctuation.

In the dissolution, the former wife attempted to establish a special equity in the real property and the CMA account. The trial court determined that the former wife failed to "rebut the [gift] presumption" as to both types of property and thus, she was deemed to have given a one-half interest in these assets to her former husband.

We agree with the trial judge that a presumption of a gift is established when a tenancy by the entireties is created by a spouse with his or her separate real property. This presumption is created by section 61.075(5)(a)5, Florida Statutes (1997). The burden to prove a claim of some special equity, or more properly, that no gift was intended, is upon the presumed donor. Robertson v. Robertson, 593 So.2d 491 (Fla.1991). The former wife failed to rebut the presumption that a gift of one-half of the property was made when she retitled the property in her and her former husband's name. We therefore affirm the trial court's ruling that the real property is marital property.

We partially agree with the trial court that a presumption of a gift also arose as to the CMA account. The presumption arose, however, only as to those assets in the CMA account which became commingled with marital funds.

The presumption of a gift arising in section 61.075(5)(a)5, Florida Statutes, clearly extends only to real property. Chapter 61 of the Florida Statutes does not contain a similar presumption for personal property. Section 61.075(5)(b)2 describes as non-marital assets, those assets acquired separately by either party by noninterspousal gift. The statute does not address the situation confronted here, where nonmarital personal property, during the marriage, is placed into joint ownership between the spouses either as a joint tenancy with rights of survivorship or as a tenancy by the entireties.

When a joint account, originally established with...

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14 cases
  • Deutsche Bank Nat'l Trust Co. v. Cope, Case No. 2D18-3696
    • United States
    • Florida District Court of Appeals
    • May 29, 2020
  • Escudero v. Escudero, 98-1833.
    • United States
    • Florida District Court of Appeals
    • September 3, 1999
    ...Robertson v. Robertson, 593 So.2d 491 (Fla.1991); Swickle v. Swickle, 723 So.2d 310 (Fla. 4th DCA 1998); Archer v. Archer, 712 So.2d 1198, 1199 (Fla. 5th DCA 1998). The only testimony as to why he placed the title in joint names Because I felt bad. I'm an old man and I can die at any time. ......
  • In re Kellman, Bankruptcy No. 98-08311-3F7. Adversary No. 99-188.
    • United States
    • U.S. Bankruptcy Court — Middle District of Florida
    • December 3, 1999
    ...(1979). Trustee claims that Defendant gifted half of the Jax Navy account to Debtor. Additionally, Trustee cites Archer v. Archer, 712 So.2d 1198, 1199 (Fla. Dist.Ct.App.1998) for the proposition that when a joint account, originally established with non-marital property, is commingled with......
  • Grieco v. Grieco
    • United States
    • Florida Supreme Court
    • January 13, 2006
    ...1999 (citing Farrior v. Farrior, 712 So.2d 1154 (Fla. 2d DCA 1998); Lyons v. Lyons, 687 So.2d 837 (Fla. 2d DCA 1996); Archer v. Archer, 712 So.2d 1198 (Fla. 5th DCA 1998); Spielberger v. Spielberger, 712 So.2d 835 (Fla. 4th DCA 1998)). Here, the marital efforts factor does not apply; any in......
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5 books & journal articles
  • Special equity and unequal distribution of assets.
    • United States
    • Florida Bar Journal Vol. 75 No. 10, November 2001
    • November 1, 2001
    ...their nonmarital character and were transformed into a marital asset. Nearly 10 years later, the Fifth District in Archer v. Archer, 712 So. 2d 1198 (Fla. 5th DCA 1998), confirmed that tracing is still used by the courts to determine the characterization of assets. In that case, the wife ow......
  • Equitable distribution and property issues
    • United States
    • James Publishing Practical Law Books Florida Family Law and Practice - Volume 1
    • April 30, 2022
    ...that a gift was thereby intended. This determination must be made without any benefit of a gift presumption. [ Archer v. Archer, 712 So. 2d 1198 (Fla. 5th DCA 1998).] The general rule is that when one spouse deposits funds into a joint account where they are commingled with other funds so a......
  • Determining the nonmarital portion of retirement benefits and other property.
    • United States
    • Florida Bar Journal Vol. 81 No. 2, February 2007
    • February 1, 2007
    ...Williams v. Williams, 686 So. 2d 805 (Fla. 4th D.C.A. 1997); Amato v. Amato, 596 So. 2d 1243 (Fla. 4th D.C.A. 1992); Archer v. Archer, 712 So. 2d 1198 (Fla. 5th D.C.A. (20) Certain decisions have found that the nonmarital account loses its nonmarital character by commingling the two funds. ......
  • A brave new frontier: the equitable distribution 2008 legislative changes.
    • United States
    • Florida Bar Journal Vol. 82 No. 11, December 2008
    • December 1, 2008
    ...of the statutory amendment applying the gift presumption to personal property, a brief history may be instructive. In Archer v. Archer, 712 So. 2d 1198, 1200 (Fla. 5th DCA 1998), the court explained that the creation and maintenance of a joint tenancy in personal property was not enough to ......
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