McCready v. McCready, 76-505
| Decision Date | 22 February 1978 |
| Docket Number | No. 76-505,76-505 |
| Parties | Edward McCREADY, Appellant, v. Lois Miriam McCREADY, Appellee. |
| Court | Florida District Court of Appeals |
Harry G. Carratt of Morgan, Carratt & O'Connor, P. A., and J. Kaylor Young, Fort Lauderdale, for appellant.
Mallory H. Horton of Horton, Perse & Ginsberg, Miami, for appellee.
This dissolution of marriage suit proceeded to final judgment in August 1972. Being dissatisfied with that judgment, the wife appealed. This court reversed the judgment in an opinion published at 301 So.2d 804 (Fla. 4th DCA 1974). The primary basis for the reversal was that the trial court had attempted to effectuate a property settlement for the parties without authority to do so. We were concerned that the trial court's attempted division of the property may have had an effect upon the monetary awards for child support, alimony and attorney's fee. Therefore, we vacated that portion of the judgment also and remanded the cause for further proceedings in accordance with the opinion.
Upon remand the trial court took additional testimony in what it termed a trial de novo. Appellant contends on this appeal that the trial court had no authority to take further testimony. We disagree. While we did not direct the taking of further testimony, nor did we expressly authorize it, if the trial court in the interest of justice felt it would be appropriate and helpful, we can not conceive of any harm to the parties. After all, a just and proper resolution of the issues should be the ultimate aim of all concerned.
We did not, however, intend that the trial court should hold a trial de novo. Rather, if the trial judge considered additional evidence necessary that additional evidence should have been considered in conjunction with the evidence adduced at the final hearing prior to the initial appeal.
At the conclusion of the additional testimony, the trial judge entered the judgment now under review in which he states the case was tried de novo. Thus, based upon that evidence adduced after remand, the trial judge found that the wife's mother had loaned substantial sums of money to the wife with which the wife had purchased various properties. The title to some of those properties were placed in the joint names of appellant and appellee. The court found that the wife did not intend to make a gift to her husband and thus it was the wife's money alone which bought the properties, since the loans from her mother were made solely to the wife. Therefore, the court decreed that all of the jointly held property belonged to the wife.
Contributions between husband and wife during coverture toward jointly held property are presumed to be gifts. Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971). That presumption can only be overcome by clear and convincing evidence, Abbott v. Abbott, 297 So.2d 608 (Fla. 2nd DCA 1974). We have read all of the testimony in this case from both final hearings and conclude that there is inadequate support in the record for the trial judge's conclusion. Without attempting a complete resume of the evidence, suffice to say that the testimony of the wife's mother after remand was contradictory in many respects to the testimony she gave at the original final hearing. During the taking of additional testimony after remand she contended all the money she furnished, much of which was used to purchase the property jointly held by appellant and appellee, was a loan to her daughter. Yet at the first hearing she testified:
At that first hearing the mother testified that when she loaned the money to her daughter and son-in-law they were to pay her interest and they were to both pay her back. In addition to the numerous contradictions on this vital point, it is of more than passing interest that during the colloquy between the judge and counsel at the initial final hearing, when the judge was discussing a division of the jointly owned properties, there was no protest from the wife that any of the mother's money used to buy the properties was loaned to her alone, thus entitling her to the lion's share of the property.
We do not believe the totality of the evidence will support any other conclusion than that the mother's money used to purchase the jointly held property was a loan to both appellant and appellee. That being true, we are not really concerned with a gift from the appellee to appellant. They bought the property jointly. The money from her mother was a joint loan and they are both indebted for whatever amount the...
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Ray v. Ray, 92-2570
...have jurisdiction to adjudicate property rights of non-parties. Labato v. Labato, 433 So.2d 620 (Fla. 4th DCA 1983); McCready v. McCready, 356 So.2d 337 (Fla. 4th DCA), cert. denied, 364 So.2d 887 (Fla.1978). As for Mrs. Ray's cross-appeal, there was no dispute that the marital home, which ......
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Shelow v. Shelow, 88-2740
...are not parties to this action and who made no claim for relief, are not entitled to "collect" through this action. See McCready v. McCready, 356 So.2d 337 (Fla. 4th DCA) (mother who loaned money to parties to purchase properties was not party to dissolution action, and therefore, had no ri......
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Labato v. Labato, s. 82-495
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Morgenstern v. Morgenstern, 91-3075
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