Berry v. Berry
| Decision Date | 24 October 2008 |
| Docket Number | No. 2D07-825.,2D07-825. |
| Parties | John H. BERRY Jr. and John H. Berry Sr., Appellants, v. Julie M. BERRY, Appellee. |
| Court | Florida District Court of Appeals |
Arnold D. Levine of Levine, Hirsch, Segall, Makenzie & Friedsam, P.A., Tampa, for Appellants.
Julie M. Berry, pro se.
John H. Berry Jr. (the Former Husband) and his father, John H. Berry Sr., appeal the final judgment of dissolution of the Former Husband's marriage to Julie M. Berry (the Former Wife). The Former Husband and his father (Mr. Berry Sr.) first argue that the trial court erred in finding that the residence in which the Former Husband, the Former Wife, and their children lived during the marriage is marital property.1 We agree and reverse on this point. The Former Husband next contends that the trial court abused its discretion in awarding the Former Wife permanent periodic alimony. The record contains substantial, competent evidence to support the alimony award, and the trial court did not abuse its discretion in this regard. Our reversal of the trial court's finding that the house was marital property, however, significantly alters the equitable distribution scheme. Therefore, we affirm the court's finding that the Former Wife was entitled to permanent alimony but remand for reconsideration of the amount in light of the significant change in the distribution plan.
The Former Wife and the Former Husband were married for eleven years. They had two minor children. After making findings regarding the factors set forth in section 61.13(3), Florida Statutes (2006), the trial court placed responsibility for the primary residential care of the children with the Former Wife but approved a shared parenting schedule prepared by the Former Husband.
The house in which the family lived during the marriage was deeded to the Former Husband by his father about three months after the wedding. The following day, Mr. Berry Sr. had the Former Husband and the Former Wife deed the property back to him. He did not record the deed until approximately eleven years later, once it became clear to him that his son and the Former Wife had permanently separated. As the trial court acknowledged in its final judgment, Mr. Berry Sr. apparently intended that his son and the Former Wife use the house as long as they were married.
The trial court, nonetheless, found that the house was marital property, noting that Mr. Berry Sr. did not record the deed from the Former Husband and the Former Wife until after the Former Wife filed her petition for dissolution. The court also noted that the Former Husband and the Former Wife had executed numerous documents over the years reflecting their ownership interest in the property. Finally, the court found that the Former Wife's signing of the deed back to Mr. Berry Sr. did not constitute a knowing and affirmative waiver of her right to marital property.
We find that the trial court incorrectly concluded that the house was marital property. The Former Wife signed a deed conveying the property back to Mr. Berry Sr. the day after he conveyed it to the Former Husband. See Jameson v. Jameson, 387 So.2d 351, 353 (Fla.1980) (). While the Former Wife alleged in her petition for dissolution that the Former Husband and an unnamed third party forged her signature on the deed, she testified at the final hearing that the signature could be hers. She also testified that she did not remember signing a deed conveying the home to Mr. Berry Sr.2 and that she would never have signed away the home. However, she stated that when her husband asked her to sign documents, she would do so without asking questions or studying the documents. Although it may not have been the Former Wife's intent to convey her homestead interest in the property, "parties to a written instrument have a duty to learn and understand the...
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