Marsh v. Marsh, 80-451

• Decision Date: 03 June 1981
• Docket Number: No. 80-451,80-451
• Citation: 399 So.2d 433
• Parties: In re the Marriage of Laurel J. Ising MARSH, Appellant, v. Arthur Wayne MARSH, Appellee.
• Court: Florida District Court of Appeals

Page 433

399 So.2d 433

In re the Marriage of Laurel J. Ising MARSH, Appellant, v. Arthur Wayne MARSH, Appellee.

No. 80-451.

District Court of Appeal of Florida, Fifth District.

June 3, 1981.

Ed Leinster, Orlando, for appellant.

Robert J. Buonauro, Orlando, for appellee.

DAUKSCH, Chief Judge.

This is an appeal from a final judgment of dissolution of marriage. The appellant raised three points on appeal. We find merit in the first point raised and reverse.

The trial judge denied the wife a special equity in the marital home on the following facts. The marriage involved was of short duration, four months, and no children were born of the marriage. The wife owned the marital home before the parties were married. After having been married two months, the wife had the home put into her name and the husband's name. The wife alleges, and the evidence supports the allegation, that this was done so that her children from a previous marriage would have a home if something happened to her; however, in case of a divorce, the property was to be transferred back to her. The husband claimed it was a gift. The trial court found that the wife gave the home as a gift to the husband and ordered the home partitioned and sold. We find the trial court erred in failing to award the marital domicile to the wife because of her special equity.

Prior to Ball v. Ball, 335 So.2d 5 (Fla.1976), a conveyance from a husband to a wife was presumed to be a gift as was a conveyance from a wife to a husband. Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971). The effect of the Ball decision was to raise another presumption: the presumption that a special equity is created by an unrebutted showing that all the consideration for property held as tenants by the entirety was supplied by one spouse from a source clearly unconnected with the marital relationship. "Now the burden is on the grantee to establish, by 'contradictory' evidence, that a gift was intended. In sum, the grantee must overcome the presumption of the special equity." Wright v. Wright, 388 So.2d 1319, 1321 (Fla. 5th DCA 1980).

The evidence clearly showed that the wife entered the present marriage owning the house in her name, she paid all of the mortgage payments and property taxes. The husband testified that the wife had intended a gift to him. As was held in Merrill v. Merrill, 357 So.2d 792, 793 (Fla. 1st DCA 1978), the Ball decision should not be read "as holding that a word or two of testimony by the recipient spouse, to the effect that the other intended a gift, obliterates the special equity resulting from an unrebutted showing that the grantor spouse acquired the property from sources entirely independent of the marriage." Although donative intent is a question for the trial court, the trial court's ruling is not binding on an appellate court where as here there is no credible evidence of such an intent below. Bickerstaff v. Bickerstaff, 358 So.2d 590 (Fla. 1st DCA 1978). We are bound to determine that the wife has a special equity in the marital domicile as there was no credible evidence to support the trial court's ruling that the wife intended a gift.

Accordingly, that portion of the final judgment of dissolution of marriage ordering the marital home partitioned and sold is reversed.

REVERSED IN PART.

COBB, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge, dissenting:

A person who owns separate property ¹ conveys that property during marriage jointly to themselves and their spouse. Later at dissolution of the marriage that person wants the whole property back. Are they entitled to a return of it? In failing to provide a definitive answer to this question, Florida law fails to provide a rule of law leading to a reasonably predictable result which would permit legal counsel to advise clients and trial and appellate courts to assure that equality of application of law to cases to which the public is entitled.

Ball v. Ball, 335 So.2d 5 (Fla.1976), in effect holds that, in making a division of property in a dissolution proceeding, where all the consideration for property held as tenants by the entireties is supplied by one spouse from a source clearly unconnected with the marital relationship, ² that spouse has a "special equity" in the property and is entitled to its return, "in the absence of contradictory evidence that a gift was intended." Wright ³ observes that Ball has troubled trial judges. The trouble is that Ball contains latent conceptual incongruities which promote vexatious litigation by subtle suggestions that (1) evidence of a gift is contradictory to evidence that the property was originally separate property; (2) a deed of conveyance of separate property to oneself and one's spouse does not constitute sufficient evidence of a gift to the spouse; and (3) evidence is admissible to vary, contradict, or add to, the unambiguous term of an unqualified deed of gift. Since separate property is the only type of property which can be the subject of a true gift as between married persons, ⁴ evidence that the property was previously separate property and that an interest in it was conveyed as a gift is entirely consistent. However, as a result of the language in Ball, parties often litigate these two concepts as if they were contradictory: the donor seeks to prove that the property was originally the donor's separate property (or that all the funds used to purchase it came from the donor's separate property) while the donee attempts to prove that the property was the subject of a gift. Some cases are resolved on this level of controversy. Sometimes the trial court (or later the appellate court) ⁵ either finds that the donor did not furnish all of the consideration from separate funds or finds the donor intended a gift and the donee prevails. Other times trial courts find that all the consideration was from the "donor" and that a gift was not intended and therefore hold for the donor. Commonly however, the trial judge and counsel instinctively realize that these questions are not really at issue so Ball is erroneously ⁶ read to suggest that the issue to be tried is the donor's subjective intent in making the gift with the donor contending that the conveyance was made solely to create a tenancy by the entireties for survivorship purposes during coverture ⁷ and the donee contending that the conveyance was an unqualified gift. Since every gift by one spouse to both creates a tenancy by the entireties, one of the incidents of which is that each has a right of survivorship, the trial judge often perceives the ultimate issue must be whether, at the time the gift conveyance was made, the donor intended it to be absolute in quality or conditioned on the continuance of the marriage. Since a standard unconditional deed is normally effective to make a gift of an interest in land, ⁸ a proper application of the parol evidence rule would appear to preclude this inquiry; but the rule is disregarded because, in the usual case of a gift by formal deed, its application would make Ball meaningless so testimony is taken. Since a married person making a beneficial gift to a mate is not normally then contemplating dissolution of marriage, the donor's strained ⁹ testimony impeaching the clear terms of his unqualified gift deed naturally raises a question as to the donor's credibility. A donee who would normally win at the first level of resolution merely by introducing the deed in evidence as proof of a gift loses at this level of dispute because of the inability to refute the donor's testimony as to a subjective intent to make only a qualified gift. The result is that cases involving the same simple question and the same essential facts are decided differently from case to case after extensive litigation with the result depending on the particular trial and appellate court's understanding of Ball, perceptions as to the credibility of the parties and the weight of the evidence, and various ancillary factors including whether the donor appears, in hindsight, to be able to financially afford to make the gift, the time between the gift and the dissolution, the length of the marriage ¹⁰ and the length of the chancellor's foot.

It should be recognized that while such gifts are made for various purposes and motives (usually to acquire, enhance, or restore wedded bliss), ¹¹ they are, in form unqualified gift conveyances and are intended as such when made although they are sorely regretted later. A determinative rule of law, good for all time, ¹² should be fashioned accordingly. The rule should be that unless it contains an express condition or qualification within itself, a deed or other conveyance absolute in form constitutes an executed gift and can be rescinded only for fraud or other grounds sufficient to set aside similar gifts as between unmarried parties. The mere regular and usual application of the parol evidence rule and the law relating to rescissions alone would attain this result. ¹³ On the other hand, if those who can implement philosophy by the creation of legal concepts, feel that public policy dictates that such gifts be subject to rescission on dissolution, as Ball implies, then the rule ought to forthrightly state that all such gifts are impliedly in contemplation of, and conditional, upon, a continuation of the marital relationship. ¹⁴ Such a rule would not only be consistent with public policy considerations for the preservation of marriages but would promote and facilitate a resolution of the question in a more uniform and predictable manner. Another resolution would be to treat such gift cases similar to cases where one party supplies some but not all of the consideration for the jointly held property from proceeds of separate property and uphold the gift but, at least under certain specified circumstances, find a special equity in favor of the donor for the amount of the contribution from the separate property with the remainder, if...