Estate of Melisi, In re, 82-975

• Decision Date: 21 September 1983
• Docket Number: No. 82-975,82-975
• Parties: In re ESTATE OF Samuel J. MELISI, Deceased.
• Court: Florida District Court of Appeals

Page 584

440 So.2d 584

In re ESTATE OF Samuel J. MELISI, Deceased.

No. 82-975.

District Court of Appeal of Florida Fourth District.

Sept. 21, 1983.

On Rehearing Dec. 7, 1983.

Joel M. Weissman of Sales & Weissman, P.A., West Palm Beach, for appellant--Virginia Melisi.

Sam D. Phillips, Jr., of Sam D. Phillips, Jr., P.A., and James F. Simpson, West Palm Beach, for appellee--Jo Ann Day.

DOWNEY, Judge.

The critical question involved herein is whether the real property in controversy was homestead and the decedent's interest therein not subject to devise because he was survived by a minor child.

The stipulated facts reflect that as a result of the marital union between Samuel and Virginia Melisi a child, Michele, was born. In March, 1981, the marriage was dissolved and Virginia was awarded custody of the minor child, alimony, child support and exclusive possession of the jointly owned marital home, located at 182 Cypress Drive, West Palm Beach, Florida, until Virginia remarried or Michele reached majority. Virginia and Michele continued to reside in the marital home, and Samuel supported Michele until June 19, 1981, when Samuel died unmarried and without establishing another homestead. Prior to his death, on April 30, 1981, Samuel executed a will in which he devised all of his property to a friend, Jo Ann Day. The will of April 30th was admitted to probate, and Jo Ann Day qualified as personal representative.

In due course, Virginia filed a petition in the probate proceeding in which, among other things, she claimed the Cypress Drive property as homestead. Although her original petition contended that homestead property passed to both her and Michele, ultimately Virginia claimed the property passed to Michele as the minor child of the decedent.

The trial court granted a summary final judgment against Virginia as next friend of Michele, reasoning that (a) the property was not Samuel's homestead because he was living elsewhere at the time of his death, and (b) Samuel's estate could not be deprived of his beneficial interest in the property because the exclusive possession of Virginia and Michele terminated upon Samuel's death. From that judgment Virginia has perfected this appeal.

Article X, Section 4(c) of the 1968 Florida Constitution provides:

(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner's spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

Assuming arguendo that Samuel's undivided one half interest in the Cypress Drive property was homestead, Article X, Section 4(c), quoted above, prohibits the testamentary disposition of that property in the event of his death if Michele was a minor at that time. Given the foregoing, we must determine if in fact and law the property was homestead.

In order for property to classify as homestead, the property must be the residence of either the owner or the owner's family and the owner must be the "head of a family." Nationwide Financial Corp. of Colorado v. Thompson, 400 So.2d 559 (Fla. 1st DCA 1981).

The usual factual situation giving rise to the establishment of a homestead finds the head of family as an owner residing upon the homestead parcel with an entity consisting of himself and at least one other person, living together in a family relationship. E.g., In re Estate of Van Meter, 214 So.2d 639 (Fla. 2d DCA 1968). The homestead character of the property is not abandoned when the owner involuntarily changes his residence, as in a case where an infirmity requires residence in a nursing home or hospital facility. 29 Fla.Jur.2d Homestead § 70. In the case of divorce, an owner may similarly be precluded from residing on the homestead with the family of which he is the head due to an award of exclusive possession to the other spouse. The Title Notes of the Lawyers' Title Guaranty Fund state:

The homestead has not been abandoned where the husband does not reside on the property at his death but his family has continuously lived on the property up to the time of his death. Burdick v. Burdick, 399 So.2d 410 (Fla. 3d DCA 1981). In order to support a claim of abandonment it must be shown that both the owner and the owner's family abandoned Title Funds Notes, Lawyers' Title Guaranty Fund, T.N. 16.01.01 (1976 as supplemented).

the property. Nationwide Financial Corp. of Colo. v. Thompson, 400 So.2d 559 (Fla. 1st DCA 1981).

In Osceola Fertilizer Co. v. Sauls, 98 Fla. 339, 123 So. 780 (1929), the Florida Supreme Court stated:

"Though a man be divorced from his wife, and she entrusted by the decree with the custody of the children and possession of the home, his status as the head of a family is not lost nor his obligations to his children terminated, and his right to a homestead remains." (quoting Speer & Goodnight v. Sykes, 102 Tex. 451, 119 S.W. 86 (1909).)

Regardless of the foregoing authorities, appellee contends here, as she did in the trial court, that the property in question is not homestead property because Samuel did not reside thereon at the time of his death. Apparently persuaded by that argument, the judgment appealed from bases its conclusion in part thereon. This we hold is error.

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