McKinlay v. McKinlay, BN-405

• Court: Florida District Court of Appeals
• Writing for the Court: ZEHMER; Sharp's; WIGGINTON; BOOTH; BOOTH
• Citation: McKinlay v. McKinlay, 523 So.2d 182, 13 Fla. L. Weekly 901 (Fla. App. 1988)
• Decision Date: 07 April 1988
• Docket Number: No. BN-405,BN-405
• Parties: 13 Fla. L. Weekly 901 John R. McKINLAY, Appellant, v. Louise R. McKINLAY, a/k/a Ellen Louise McKinlay, Appellee.

Page 182

523 So.2d 182

13 Fla. L. Weekly 901

John R. McKINLAY, Appellant, v. Louise R. McKINLAY, a/k/a Ellen Louise McKinlay, Appellee.

No. BN-405.

District Court of Appeal of Florida First District.

April 7, 1988.

Joseph E. Warren, Jacksonville, for appellant.

Mark H. Mahon of Lacy Mahon, Jr. and Mark H. Mahon, P.A., Jacksonville, for appellee.

ZEHMER, Judge.

Appellant, John R. McKinlay, appeals from a final judgment of dissolution granting Appellee, Louise R. McKinlay, a special equity in the property acquired during the parties' marriage. The trial court based the special equity on its factual findings that: (1) the wife produced a greater income during the course of the marriage; (2) the wife performed a greater portion of the household duties and child-rearing responsibilities during the course of the marriage; and (3) the husband, during the last third of the marriage, committed adultery and used marital funds to support the adulterous relationship. We find that the factual bases for awarding the special equity do not conform with applicable principles of law.

A special equity is defined as a vested interest that a spouse acquires in property held by the parties during the marriage because of the contribution of funds, property, or services made over and above the performance of normal marital duties. Duncan v. Duncan, 379 So.2d 949 (Fla.1980). The fact that the parties' earnings are not in parity has been held not to justify an award of special equity. Holbrook v. Holbrook, 383 So.2d 981 (Fla. 4th DCA 1980), pet. for rev. den., 392 So.2d 1375 (Fla.1980); Fiedler v. Fiedler, 375 So.2d 1119 (Fla. 2d DCA 1979), cert. denied, 383 So.2d 1193 (Fla.1980). Similarly, performance of a greater portion of the household duties and child-rearing responsibilities is not the kind of contribution that justifies an award of special equity. See Strickland v. Strickland, 494 So.2d 514 (Fla. 4th DCA 1986) and West v. West, 399 So.2d 428 (Fla. 5th DCA 1981). See also Judge Sharp's dissent in Wallace v. Wallace, 453 So.2d 535 (Fla. 5th DCA 1984).

The facts underlying Appellant's adulterous relationship in this case also do not provide a proper basis for awarding a special equity in the parties' marital property. Evidence of Appellant's adulterous relationship was irrelevant to a finding that Appellee contributed services or funds over and above normal marital duties. The Florida Supreme Court recently held that evidence of a spouse's adultery is not a proper basis for awarding an increase in alimony where there is no evidence that the adulterous relationship resulted in the faithful spouse's greater financial need nor depletion of the family resources. Noah v. Noah, 491 So.2d 1124 (Fla.1986). The record before us reveals no evidence that Appellant's relationship resulted in Appellee's greater financial need, and the evidence of the several expenditures for a motel room and the like are too de minimis to support a finding that Appellant's adulterous conduct materially contributed to a depletion of the family resources.

Appellant also argues that the court improperly divided Appellee's investment plan. This plan is an account Appellee has with her employer and contains money invested by Appellee and her employer. Whether this account constitutes a savings account or a retirement plan, the trial court should have considered the vested amount that accumulated during...