Murphy v. Murphy, s. 78-538

• Decision Date: 17 April 1979
• Docket Number: 78-737,Nos. 78-538,s. 78-538
• Citation: 370 So.2d 403
• Parties: John S. MURPHY, Appellant, v. Mary Lou Ragen MURPHY, Appellee.
• Court: Florida District Court of Appeals

Page 403

370 So.2d 403

John S. MURPHY, Appellant, v. Mary Lou Ragen MURPHY, Appellee.

Nos. 78-538, 78-737.

District Court of Appeal of Florida, Third District.

April 17, 1979.

Rehearing Denied May 25, 1979.

Buchbinder & Elegant and Harris J. Buchbinder, Miami, Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, Miami Beach, for appellant.

R. Stuart Huff, Miami, for appellee.

Before PEARSON, HENDRY and KEHOE, JJ.

PEARSON, Judge.

These appeals are by the husband from the property provisions of a final judgment dissolving his marriage to the appellee and from a subsequent order holding him in contempt.

The parties were married to each other in 1965. The wife had four children by a prior marriage; the husband had one. Two children were born of the marriage. The wife was, at the time of the marriage, the owner of considerable property. The husband had very little. ¹ During the progress of the cause to final judgment, the parties entered into a stipulation providing for the custody and visitation rights for the two minor children of the marriage. The court provided for the husband to pay a portion of the support of the children. No point on appeal is directed to these provisions.

The basic conflict arises out of the wife's claim of a special equity in the real and personal property in which the husband held a record interest. The basis of the wife's claim was that she had provided the consideration for these properties from a source unconnected with the marriage. She claimed that she had periodically conveyed a portion of her record interest to the husband at his insistence. She alleged that she had never intended a gift of any interest to survive coverture.

The record shows that shortly after the marriage, the wife executed deeds to the husband making him a joint owner on all of her properties. Later, a residence was purchased in Coral Gables and title was taken in an estate by the entireties. During the marriage, the wife received other property in Florida from the estate of her parents. The wife executed a quit claim deed transferring title in this property to the parties' joint names as tenants by the entireties.

The trial judge found as to the husband's conduct during the marriage:

"11. The Court is of the opinion that the equities in this cause are with the Wife, and against the Husband. It appears that he was never gainfully employed, and made no recognizable effort to support his Wife and family by his own efforts. The Husband was well educated, and in good health, but apparently chose to live on the monies received by his Wife from the estate of her first husband and from the estates of her deceased parents. The Husband will leave this marriage, some twelve years after its inception, better off financially than when he entered it. Virtually none of this improved status was achieved by his own efforts. Upon dissolution, this Court sees no reason to extend a lifetime of ease which he has done so little to earn."

Throughout the marriage, the parties had disputes which revolved around the treatment of the children each had at the time of their marriage. They separated on several occasions and each, at times, consulted counsel. In 1973, the parties separated and upon reconciliation, entered into an agreement which is central to the trial court's decision and appellant's first point on appeal.

As to this agreement, the trial judge found:

"10. On July 11th, 1974, the parties entered into a written 'Agreement'. On that date, the parties held record title to all of the aforedescribed properties as tenants by the entireties. That ownership existed by virtue of quit-claim deeds which had been prepared by the Husband and executed by the Wife. The Agreement provided, inter alia, that the parties would execute such deeds as were necessary to vest title in them as tenants in common, with the Wife owning an undivided 56% And the Husband owning an undivided 44% Therein. The Agreement did not effect the title to the home at 525 Hardee Road. When suit was commenced, the parties had in fact executed the requisite deeds. The Wife testified that her intent in executing that Agreement was (1) to be able to dispose of certain property by will, independent of entireties ownership; and, (2) to satisfy her Husband's insistence that she execute the Agreement. The Husband, and his former counsel at the time of the execution, testified that the Husband's sole intent in entering the agreement was to placate his Wife, who was insisting upon the Agreement. The Court has carefully reviewed that Agreement. Considering both the express language of the Agreement, and the Intent of the parties as Testified to, the Court finds nothing therein which would bar the claim which the Wife has here asserted. The Court finds it unnecessary at this time to determine the validity or enforceability of that Agreement, having determined that there is nothing in that Agreement material to this suit. The Husband's contention that the mere change in form of ownership from an entireties to a tenancy in common form, in itself, bars a special equities action, is without merit. It cannot be inferred from the Agreement that the Wife intended to relinquish any rights not expressly set forth therein. Davis v. Davis, 301 So.2d 154 (3rd DCA, 1974)." (Emphasis supplied).

As to the separate properties, the trial judge found:

1. The marital residence "Thus, it was impossible for any separate funds of the Husband's to have been used in the acquisition of the Coral Gables property in September of 1967. Therefore, this Court must find that the entire consideration for the acquisition of this property was provided by the Wife. The Husband made no attempt to show that the Wife intended to gift his record interest in this property to him. The Wife has established her special equity in her Husband's record interest to this home."

2. The Florida Keys property:

"The Wife sustained her burden of establishing that the sole consideration for all of these properties was provided from her inheritance from the estates of her parent, James M. Ragen. The Wife clearly established that no cash consideration was paid for these parcels, but, rather, that she relinquished her interests in other estate properties to the remaining beneficiaries, as full consideration therefor. The evidence shows that each of these properties was originally deeded to the Wife, solely, in fee simple. There was testimony by the Husband that he provided some payment to one of the beneficiaries: Robert Ragen. That testimony by the Husband was vague and uncertain, and was unequivocably denied by Robert Ragen in his rebuttal testimony. It was admitted that the Husband himself prepared quit-claim deeds for the Wife to execute, vesting an interest in those properties in himself. The Husband made no attempt to show that the Wife possessed a gift intent in executing those conveyances. It should be noted that the record is devoid of any testimony as to services rendered by the Husband in and about the acquisition or maintenance of these specific properties. Therefore, the Wife has sustained her burden of establishing her special equity in the Husband's record interest to those properties."

3. A mortgage on lots on Ponce de Leon Boulevard, Coral Gables, Florida:

"The Wife sustained her burden of showing that this property was originally acquired from the estate of her mother, Ellen S. Ragen.

"The Wife has established her special equity in her Husband's record interest to this property, which was a mortgagee's undivided 44% Interest at the time this suit was commenced."

4. Bank deposits:

"There is no sufficient evidence before the Court upon which the Court could make an equitable determination as to the rights of the parties to these funds, and the Court will leave the parties as it found them."

5. Purchase money mortgage on Chicago property:

"It was admitted by both parties that this property was received by the Wife, before this marriage, as an inter vivos gift from her mother, Ellen S. Ragen. No additional consideration was ever paid for the acquisition of this property. The Husband made no attempt to show that the Wife intended to gift a portion of her interest in this property to him, when any conveyance thereof was effected. Therefore, the Wife has established her special equity in this property, and in the mortgage thereon."

Appellant-husband's first point urges that the agreement of July 11, 1974, constituted a post-nuptial property settlement agreement and that, therefore, the agreement was binding upon the court so that the husband must be awarded a 44% Interest in all of the jointly-owned property. ²

A considerable portion of appellant's argument is directed to the position that this cause must be reversed because the trial judge found the agreement not to be material and, therefore, could not have considered it even to determine its relevancy. We think that a full reading of the trial judge's findings reflects the fact that he did consider the agreement and found that it was not binding as to a declaration of special equities in the dissolution proceedings. We interpret the court's finding to be as follows:

The court (1) has read the agreement, (2) because it is relevant to this case in light of the husband's argument that its effect in changing the basis of ownership of the real property concerned from that of entireties to that of common tenancy bars an equitable distribution. However, the court (3) finds this contention to be without merit and (4) because the agreement, therefore, places no restrictions on the court's equitably distributing the property, accordingly, (5) the court finds the agreement not to be material to this suit in this respect, and (6) finds it unnecessary to determine the validity and enforceability of the agreement.

We return to an examination of whether the court erred in failing to find the agreement binding as to special equities. The appellant relies...