Bergh v. Bergh, C-198

• Decision Date: 07 March 1961
• Docket Number: No. C-198,C-198
• Citation: 127 So.2d 481
• Parties: Mildred C. BERGH, Appellant, v. Marcus B. BERGH, Appellee.
• Court: Florida District Court of Appeals

Page 481

127 So.2d 481

Mildred C. BERGH, Appellant, v. Marcus B. BERGH, Appellee.

No. C-198.

District Court of Appeal of Florida, First District.

March 7, 1961.

Rehearing Denied March 20, 1961.

Scruby & Yonge, Orange Park, for appellant.

Reinstine, Reinstine & Panken, Jacksonville, for appellee.

WIGGINTON, Chief Judge.

Plaintiff wife has appealed from a final decree entered in a suit for divorce brought against her husband. The decree, among other things, made a division of the property accumulated by the parties during their marriage. It is that part of the decree adjudging the interest of each party in the property accumulated during marriage, and making division thereof, which is assigned as error.

We are concerned with three separate parcels of real estate which for convenience will be described and referred to separately as the home, the clinic and the improved town property. The evidence reveals and the special master found that all of the funds used in the acquisition of the real estate and the construction of the improvements thereon was furnished by defendant husband out of his income as a practicing medical doctor.

The property consisting of the home was purchased as unimproved lots and title taken in the name of both husband and wife as an estate by the entirety. Thereafter the property was improved and the home occupied by the parties was constructed thereon. The cost of the land, the improvement thereof, and construction of the home exceeded $110,000.

The lot referred to as the improved town property was likewise purchased as vacant property and title taken in the name of the parties hereto as an estate by the entirety. There was constructed on this lot a dwelling at a cost of $13,000 which is producing a rental income of $100 a month.

In 1954 title to the two parcels of property described above was conveyed to the plaintiff wife and title has at all times since remained vested in her alone. By her complaint the wife claimed the foregoing properties as her separate estate. By his answer the husband alleged that title to both parcels was conveyed to the wife with the understanding that it was to be held by her in trust for the benefit of both parties. The only explanation of the reason why this conveyance was made is the testimony of the wife given before the special master in which she said that title was conveyed to her for the security of herself and the children at a time when her husband was being sued by another party. She admitted that no discussion took place at that time or any time thereafter as to whether the conveyance was intended as a gift.

The third parcel of property with which we are concerned is that described as the clinic which consists of two adjacent lots located in the town of Orange Park. This property was unimproved at the time it was purchased and title thereto taken in the name of both husband and wife as an estate by the entirety. Thereafter the husband constructed on this property a medical clinic used by him in the practice of his profession at a cost of $43,000. Title to this property has at all times remained in the parties as an estate by the entirety and is subject to an outstanding mortgage in excess of $3,000.

In his report and recommendations the special master found from the testimony above mentioned that the conveyances of the home and the improved town property to the wife in 1954 must, under the applicable principles of law, be presumed to be a gift since the record is devoid of any conclusive evidence to the contrary. He recommended that this be adjudged the separate property of the wife. He further recommended that the final decree declare both husband and wife to be tenants in common of the property consisting of the medical clinic and each party be enjoined from selling, conveying or in any manner encumbering his or her undivided one-half interest in the property until further order of the court. Exceptions to the foregoing recommendations of the special master were filed by defendant husband and considered by the court on final hearing.

The final decree confirmed the special master's report and recommendations in all respects except as to that part thereof dealing with the rights of the respective parties in the three parcels of property mentioned herein. The decree granted the wife an absolute divorce, together with the custody of the minor children born of the marriage. It awarded the wife $1,000 a month as alimony and support for the children, and also awarded court costs and attorney's fees.

With respect to the home and the improved town property the final decree recites that the special master's findings to the effect that the conveyances of these properties to the wife carry with them the well-recognized principle of 'presumption of gift' is a correct statement of the law. The chancellor found, however, that based on the surrounding facts and circumstances under which the conveyances were made as reflected by the testimony of the wife, the presumption fails and is untenable. The chancellor found that the wife's testimony, without more, is wholly sufficient to overcome the presumption of gift. The effect of the court's ruling in this regard was to sustain the husband's exception to the special master's report as it relates to the interest of the respective parties in the home and improved town property, and in effect adjudges that the husband and wife have an equal joint interest in these two parcels of property even though record legal title is vested in the wife under the conveyances previously made to her.

The second phase of the final decree purports to effect a partition of the three parcels of property between the husband and wife. It decrees that the sole and exclusive title to the home and improved town property is confirmed in the wife, but orders the wife to execute and deliver to the husband a deed conveying to him her interest in the two lots on which the clinic is located, title to which at all times has been vested in both parties as an estate by the entirety.

On this appeal appellant wife makes two contentions. She first urges that the court erred in sustaining the husband's exception to that part of the special master's report and recommendation which held that the wife was possessed of fee simple title to the home and improved town property, which parcels should be decreed to be her separate estate in which the husband owns no interest. Secondly she asserts that the chancellor erred in requiring her to convey to her husband the interest which she holds as an estate by the entirety in the property on which the clinic is located. We shall discuss these two contentions in the order stated.

The evidence is uncontradicted that title to the property consisting of the home and the improved town property was originally taken in both the husband and wife as an estate by the entirety. Long prior to the institution of this action the husband and wife joined in a deed conveying to the wife title to the above mentioned parcels of land. The only evidence in the record relating to this transaction is that adduced by the wife by which she testified that the property was conveyed to her for the security of herself and the children at a time when her husband was being sued by another party. No discussion took place at that time nor at any time thereafter, as to whether this conveyance was intended as a gift. The master's interpretation of the above mentioned testimony is that under well-established rules of law prevailing in this state the presumption arises that the wife took the beneficial, as well as the legal, title to the property described in the deeds, and that by placing title in her name the husband intended the conveyance as a gift. Such presumption is accompanied by the corollary presumption that no trust was intended and that this latter presumption may be rebutted only by evidence which is so clear, strong and unequivocal as to remove every reasonable doubt as to the existence of the trust. ¹

By his decree the chancellor disagreed with the special master's interpretation that the wife's testimony above mentioned clothed the conveyance with the presumption of gift. The chancellor's interpretation of the evidence was that no gift was intended, but the title to the mentioned properties was placed in the wife by the husband as an expedient at a time when he was engaged in litigation, apparently upon the assumption that such was necessary in order to place the property beyond the reach of any judgment creditor in the event he was unsuccessful in the litigation in which he was then involved. It was the chancellor's interpretation of the evidence that title to the property was intended to be held by the wife in trust for the benefit of both her and the husband. The effect of the chancellor's holding is that the parties have a joint and equal interest in both the home and the improved town property to the same extent as if title had remained in them as an estate by the entirety and the subsequent conveyances by the husband had never been made. The problem with which we are confronted is the question of whether the chancellor exceeded his authority in disagreeing with the interpretation placed by the special master on the uncontradicted evidence, and in reaching a contrary conclusion based upon his interpretation which in the exercise of his discretion appeared to him to be equitable and just.

It is appellant's position that under the rule of law announced by the Supreme Court in the Harmon case ² the chancellor may override or modify the findings of its master in any manner consistent with the justice of the case, but he may not do this except for good cause, the term 'good cause' being interpreted to mean a showing that the finding of fact by the master was clearly erroneous. In the Harmon case the Supreme Court said: 'In fine, we have the view that where, as in this case, a competent master is selected by the...