Cory v. Parks, 79-2114
| Decision Date | 23 July 1980 |
| Docket Number | No. 79-2114,79-2114 |
| Citation | 386 So.2d 292 |
| Parties | Opal CORY, Appellant, v. Charles O. PARKS, Jr., Gardner W. Beckett, Jr., Daniel D. Krass, and CarolineE. Gibbs, Appellees. |
| Court | Florida District Court of Appeals |
A. T. Cooper III, Largo, for appellant.
Gardner W. Beckett, Jr., pro se, of Nelson, Beckett & Nelson, St. Petersburg, for appellees.
Opal Cory appeals a final summary judgment in an action she brought to quiet title to certain real property. We reverse.
Appellant raises three points, only one of which we find to have merit, and we will recite only the facts pertinent to this point.
In 1972, Myrtle Wood Krass executed a warranty deed of the property in dispute from herself to herself and appellant as joint tenants. At the time of the conveyance, Myrtle Wood Krass was married to Daniel Krass, and they occupied the property as their marital home. Mr. Krass did not join in the execution of the deed.
The trial court ruled, solely on the basis of the facts set forth above, that "Myrtle Wood Krass was a joint or equal 'head of a household' " within the meaning of the homestead law, that the property was therefore homestead property not subject to alienation, and that the deed in question was therefore void.
Article X, Section 4(c) of the Florida Constitution provides: "The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift . . . ." (Emphasis added). Section 4(a) defines homestead as certain property "owned by the head of a family." Thus, the issue before the trial court was whether Myrtle Wood Krass was "the head of a family."
In Brown v. Hutch, 156 So.2d 683 at 684-685 (Fla. 2d DCA 1963), this court stated:
Generally, a family, for homestead purposes, includes at least two persons living together as one family under direction of one of them, who is recognized as the "head of the family." Hussa v. Hussa Fla. 1953, 65 So.2d 759; 16 Fla. Jur., Homesteads, section 28, page 291. For determination of the existence of a family relationship, there are, in Florida, two basic recognized tests to be met, either singly or in combination: (1) a legal duty to maintain arising out of the family relationship; (2) a continuing communal living by at least two individuals under such circumstances that one is regarded as the person in charge. Crosby and Miller, Our Legal Chameleon, 2 Fla.L.Rev. 24; Beck v. Wylie, Fla. 1952, 60 So.2d 190; 16 Fla. Jur., Homestead, section 27, page 290.
For homestead purposes there can be only one head of a family. Solomon v. Davis, 100 So.2d 177 (Fla. 1958); Anderson v. Garber, 183 So.2d 693 (Fla. 3d DCA), cert. denied, 188 So.2d 820 (Fla. 1966). The determination of family headship has always involved a factual inquiry, In re Estate of Wilder, 240 So.2d 514 (Fla. 1st DCA 1970); see Beck v. Wylie, ...
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Smith v. Stewart, s. 77-2414
...that one is regarded as the person in charge," 2 as entitled to the benefit of the homestead exemption. See, e. g., Cory v. Parks, 386 So.2d 292 (Fla.2d DCA 1980); Brown v. Hutch, 156 So.2d 683 (Fla.2d DCA 1963); 16 Fla.Jur., Homesteads § 27 (1957); Crosby and Miller, Our Legal Chameleon, 2......
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Holden v. Gardner's Estate
...to be resolved on the facts of each case. Nationwide Financial Corp. of Colo. v. Thompson, 400 So.2d 559 (Fla.1981); Cory v. Parks, 386 So.2d 292 (Fla.2d DCA 1980). The petitioner contends that the 1968 revision of the constitution and the passage of the Dissolution of Marriage Act in 1971 ......
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Holden v. Estate of Gardner, XX-256
...communal living by at least two individuals under such circumstances that one is regarded as the person in charge. Cory v. Parks, 386 So.2d 292 (Fla. 2d DCA 1980); Beck v. Wylie, 60 So.2d 190 (Fla.1952). The homestead provision of the Constitution was designed to protect those persons whom ......
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