Burns v. Burns, 4966

• Decision Date: 09 April 1965
• Docket Number: No. 4966,4966
• Citation: 174 So.2d 432
• Parties: Billie P. BURNS, Appellant, v. Smith BURNS, Appellee.
• Court: Florida District Court of Appeals

Page 432

174 So.2d 432

Billie P. BURNS, Appellant, v. Smith BURNS, Appellee.

No. 4966.

District Court of Appeal of Florida, Second District.

April 9, 1965.

Rehearing Denied May 7, 1965.

Clyde H. Wilson, Sarasota, for appellant.

Wood, Scheb, Whitesell & Drymon, Sarasota, for appellee.

RAWLS, JOHN S., Associate Judge.

In this suit for divorce instituted by appellant wife, the chancellor entered a final decree of divorce in her favor and against the defendant. This is about the only part of said decree with which she is satisfied. Appellant now asserts error on the part of the chancellor in the following particulars: (1) in decreeing partition of the home which was held as an estate by the entirety on the ground that requisite pleadings had not been filed, (2) in decreeing a lien on said home in favor of a person not a party to the suit, and (3) in failing to grant to her alimony, or at least the use of the home of the parties.

Essential facts are: Plaintiff wife and defendant husband were married on December 2, 1951. It was the third marital venture for the plaintiff and the second for defendant. Plaintiff brought into the marriage four children--two by her first husband and two by her second husband--whose respective ages were 13, 11, 7 and 4 and they all moved into a home owned by the husband prior to the marriage. The husband adopted the two younger children and assisted in rearing them. About five years prior to the wife's instituting the divorce suit, the parties constructed a new home, which is referred to as the 'Houle Avenue House.' The sources of funds for construction of the new home which cost approximately $19,500.00 were: (1) $7,900.00 from sale of the home owned by the husband at the time of the marriage, (2) $9,000.00 borrowed by the husband from his aunt, a Mrs. Kelly, which loan was evidenced by a promissory note signed by the husband and referred to by the parties as the 'Kelly loan' and (3) the balance from joint savings of the parties.

In his final decree, the chancellor, inter alia, approved and confirmed the division the parties had made between themselves of all personal property accumulated during their marriage; found that the older adopted child was nineteen years of age and self-supporting and awarded custody of the younger child to the wife and required the husband to pay support in the sum of $10.00 per week until July 15, 1964 (on which later the younger child would be 18 years of age); found that the wife has a responsible position with a local bank, is earning an income adequate to support herself and is not entitled to any alimony; and found that the Houle Avenue house was acquired and improved with funds received from Mrs. Mattie Kate Kelly in the amount of $9,000.00, monies realized from the sale of a house owned by the husband prior to this marriage and the balance from joint funds of the parties; that the Kelly loan was made to both parties with the express knowledge that the proceeds were to be used to build the Houle Avenue home; that both parties treated and accepted the Kelly proceeds as a loan to the both of them for the express purpose of acquiring a marital home; and that they are jointly liable for said Kelly loan. The Court then found that the pleadings were sufficient to invoke its jurisdiction in decreeing partition, granted the parties 180 days to work out an equitable sale of the Houle Avenue property or alternatively an equitable way of repaying the joint debt to Kelly, and should the parties fail to either voluntarily sell or arrange repayment during such period, ordered a judicial sale of the property.

It is well settled that divorce destroys an estate by the entirety and transforms the husband and wife into joint tenants or tenants in common. In that relationship each party generally has an equal undivided interest and either may seek partition after divorce provided it would not conflict with the divorce decree. ¹ Partition is also a proper subject to be adjudicated in a divorce proceeding when the chancellor has by appropriate pleadings acquired actual jurisdiction. In Fields v. Fields, ² involving a bill of complaint analogous to the one in the instant cause, wherein the wife sued for divorce, permanent alimony, suit money, and partition of a home owned by the estate by the entirety, the court held:

'It would not be difficult to generate two law suits from the situation but the divorce, the title to the home, the matter of alimony and the matter of restitution are all so involved that the same evidence may have to do with each of them so there is every reason why they should be adjudicated in one suit and we are shown no reason why they should not be considered together.'

Here, the initial complaint filed by plaintiff did not pray for partition; this subject arose upon the counterclaim of the defendant, and this counterclaim was technically deficient in two vital respects. It was not sworn to by the complainant, and it did not describe the subject property by metes and bounds, or other appropriate description, as required by the statute. As to the first requisite, the Supreme Court of Florida held in Beverette v. Graham, ³ that a bill of complaint not sworn to by complainant is insufficient to invoke the jurisdiction of the court in partition proceedings. However, a reversal of this cause does not preclude the chancellor upon remand from permitting the filing of appropriate pleadings complying with the statutory requisites for partition and then proceeding thereon to final judgment. ⁴

Appellant's second contention that the chancellor decreed a lien on the Houle Avenue property in favor of a person not a party to the suit is not supported by the specific provisions of the decree. The chancellor in determining property rights incident to divorce did reach the conclusion that '* * * between pladintiff wife and defendant husband that they are jointly liable for said loan, * * *' and as an incident to partition he did provide for repayment of the loan from the proceeds of the sale of the home should such sale become necessary. The essence of the findings in the decree was to the effect that the building of the home was made possible by the loan and that some equitable adjustment must be employed to prevent unjust enrichment to the wife upon partition of that property. The record contains sufficient evidence to justify that conclusion, though we find that the method employed by the chancellor is erroneous in some respects.

We find that the chancellor erred in decreeing that the loan was the obligation of both parties. The controversial loan was initiated, agreed upon, and evidenced as a result of dealings between defendant and Mrs. Kelly. This record does not reflect any solicitation of the loan on the part of plaintiff from Mrs. Kelly nor does it show any promises of repayment, oral or written, made by plaintiff to Mra. Kelly. The repayment of the loan was a matter solely between defendant and Mrs. Kelly.

We next consider that portion of the decree which provided that if sale by a special master becomes necessary, the proceeds would be used to discharge the loan before the balance was divided equally between the parties. The inherent right of a chancellor in a divorce action to adjudicate the parties' equitable interests in property acquired during...