Lieber v. Lieber

• Decision Date: 01 March 1949
• Citation: 40 So.2d 111
• Parties: LIEBER v. LIEBER.
• Court: Florida Supreme Court

40 So.2d 111

LIEBER v. LIEBER.

Florida Supreme Court

Rehearing Denied April 19, 1949

March 1, 1949

Appeal from Circuit Court, Dade County; George E. Holt, Judge.

Mitchell D. Price, Zaring & Florence, of Miami, for appellant.

Shutts, Bowen, Simmons, Prevatt & Julian, of Miami, for appellee.

CHAPMAN, Justice.

Challenged on this appeal by the parties below are, hereinafter designated provisions of a final decree, entered in the Circuit Court of Dade County, Florida, which granted the husband a divorce and adjudicated property rights of the parties. The parties to this suit were married in 1906 and for many years thereafter resided in Cleveland, Ohio. Max Lieber moved to Dade County, Florida, and in September, 1946, instituted this suit. The wife, Jennie Lieber, by cross appeal, assigns and argues as error the provision of the decree which granted her husband a divorce on the ground the extreme cruelty.

The plaintiff-appellant is satisfied with the portion of the final decree which granted the parties a divorce and prays for an affirmance thereof by this Court. The record discloses that some time prior to the institution of this suit the plaintiff-appellant acquired by purchase a piece of real estate situated in Dade County, Florida, for the approximate sum of $41,000 and accepted a warranty deed thereto in the name of Max Lieber and Jennie Lieber, thereby creating an estate by the entirety. He contended in the Court below and here that Jennie Lieber agreed to return to him the sum of $20,500, being one-half of the purchase price of the Dade County property, but she failed so to do and he requested the Court below to enter a decree requiring her to return said sum or in the alternative for the wife to convey to the husband her interest in and to the said property. The Court below held against this claim and it is argued that this part of the decree is erroneous.

The sufficiency of the evidence to sustain the provision of the decree of divorce on the ground of extreme cruelty is challenged on this appeal. It appears from the testimony that the parties, from the time of the marriage until 1912, encountered financial difficulties in making a living. The husband's income was around $10 per week, supplemented by a small weekly income earned as a musician. The wife kept boarders and the testimony discloses that she was a faithful and dependable helpmeet. The husband went into the leathergoods business and the same proved profitable and the wife assisted him in every possible manner. The only child was born in 1913. The husband later went into the luggage business and followed this line untill 1944, when he suffered a heart attack.

It appears that Max Lieber, over the years, was successful in the luggage business and accumulated considerable real property and took title thereto in his own name. The wife, Jennie Lieber, during March, 1942, filed a suit in the Ohio courts praying for a divorce but this suit was later withdrawn after a property settlement between then had been agreed upon. In this property settlement Max Lieber's net worth was estimated and fixed at the sum of $350,000. The terms of the property settlement signed by the parties in November, 1943, gave Jennie Lieber property valued at $155,000.

It appears from the evidence that but little, if any, friction existed between the parties in the early period of their married life when they were struggling and overcoming obstacles in their common fight for the necessities of life. Success in business and the accumulation of property brought to their home disputes and misunderstandings. She charged that she and the home were neglected in proportion to the prosperity of his business. It was his view that the wife gave too much of her time to society; the attendance by her of symphonies, twilight concerts, bridges and teas. The husband thought that the wife assumed a superior attitude and looked down upon him and became the boss of the Lieber home. It is not disputed that Max Lieber had a coronary thrombosis after the Ohio litigation with his wife and sold his business thereafter and retired at sixty-five. He charged that his wife neglected him in his illness and this, with other charges of misconduct, amounted in law to extreme cruelty. There is sufficient evidence in the record to sustain this conclusion. See Farrington v. Harrison, 95 Fla. 769, 116 So. 497.

It is true, as shown by the record, that the husband took title to the Miami Beach property in the names of Max Lieber and Jennie Lieber after their 1943 property settlement and prior to filing this suit in 1946. We find disputes and conflicts in the evidence on the point that the wife agreed but failed to refund the sum of $20,500 to the husband as a consideration for the one-half interest to the Miami Beach property. It is difficult to understand this transaction in light of the husband's testimony after so many clashes with his wife over property rights, as reflected by the record. It is an established rule that when property is purchased by the husband and deeded to the husband and wife jointly, an estate by the entireties is created and the presumption of law is that such property was intended as a gift to the wife and such property interest will be recognized and upheld until the presumption is overcome by competent evidence. Kollar v. Kollar, 155 Fla. 705, 21 So.2d 356; Baxter v. Baxter, 158 Fla. 886, 30 So.2d 492, and...