Ray v. Ray, 92-2570

• Decision Date: 14 September 1993
• Docket Number: No. 92-2570,92-2570
• Citation: 624 So.2d 1146
• Parties: 18 Fla. L. Weekly D2034 James F. RAY, Appellant/Cross-Appellee, v. Lynda Y. RAY, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 1146

624 So.2d 1146

18 Fla. L. Weekly D2034

James F. RAY, Appellant/Cross-Appellee, v. Lynda Y. RAY, Appellee/Cross-Appellant.

No. 92-2570.

District Court of Appeal of Florida,

First District.

Sept. 14, 1993.

Rehearing Denied Oct. 25, 1993.

Michael T. Webster, Shalimar, for appellant, cross-appellee.

Louis K. Rosenbloum and David H. Levin, of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellee, cross-appellant.

ERVIN, Judge.

In this appeal from a final judgment of dissolution of marriage, appellant/cross-appellee, James F. Ray, raises three issues on direct appeal, and appellee/cross-appellant, Lynda Y. Ray, brings one issue on cross-appeal. Mr. Ray contends that the trial court erred (1) by failing to find that $70,000 he borrowed from Mrs. Ray was a marital liability and, consequently, in not equitably distributing the same; (2) by awarding Mrs. Ray a disproportionate share of the marital assets and awarding him all the marital liabilities; and (3) by placing a lien on nonmarital property he jointly owns with his brother and mother in order to secure the $70,000 debt owed by him to Mrs. Ray, on the ground that the lower court had no authority to impress a lien on real property jointly owned with non-parties. On cross-appeal, Mrs. Ray urges that the trial court erred by failing to award her a special equity in the marital home. We reverse as to the first three issues raised by Mr. Ray, affirm Mrs. Ray's issue on cross-appeal, and remand for further proceedings.

The parties were married on June 10, 1963, and had two adult children at the time the petition for dissolution was filed in 1991. Mr. Ray owns and works a family farm with his brother and mother. Mrs. Ray is employed as a school teacher, although for many years during the marriage she remained at home to care for the parties' two daughters. Basically, the only issue tried below was the equitable distribution of six parcels of property owned by the parties, two loans, one for $70,000 and the other for $56,000, and a life insurance policy on Mr. Ray's life.

In reaching our disposition of the issues, we acknowledge, once again, that it is the trial court's function, as trier of fact, to determine whether the property owned by the spouses, either jointly or solely, is marital or nonmarital, and, if the record contains competent, substantial evidence (CSE) to support the trial court's findings in this regard, those findings should be affirmed. Tunderman v. Lee, 585 So.2d 354, 356 (Fla. 2d DCA 1991) (CSE supported finding that money husband received from his father and aunt was marital property). We find CSE to support the trial court's determinations regarding the six parcels of real property and the insurance policy; ¹ however, we conclude that the trial court erred in determining that the $70,000 and $56,000 loans were not marital liabilities, and, therefore, not subject to equitable distribution.

As for the $70,000 loan, the evidence was undisputed that Mrs. Ray received an inheritance from her father's estate in February 1987; that Mr. Ray requested a $10,000 loan from her in April 1987 and a $60,000 loan in December 1987; and that Mrs. Ray loaned Mr. Ray those sums from her inheritance. The use of these loans is, however, disputed. Mrs. Ray testified that her husband asked for the loans for the farm; Mr. Ray testified that $50,000 was used to repay the loans incurred as a result of the family's overspending when the farm's profits decreased and that the balance was applied toward farm expenses. It was the trial court's function to resolve the conflicting evidence, and we find no error in the determination that the $70,000 was used for farm expenses.

We do, however, find error in the trial court's legal determination that the $70,000 sum was not a marital liability. In so saying, we recognize that the $70,000 loan came from Mrs. Ray's inherited funds, and that Section 61.075(3)(b)(2), Florida Statutes (1989), provides that "[a]ssets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets" are nonmarital property. We also recognize that section 61.075(3)(a)(1) provides that "liabilities incurred during the marriage, individually by either spouse or jointly by them" are marital liabilities. As applied to the facts at bar, namely, application of separately owned assets to a debt which benefits a separately owned business and, incidentally, the marital relationship as well, subsections (3)(a)(1) and (3)(b)(2) appear to be inconsistent with one another. We note, however, that both subsections were enacted during the same legislative session and relate to the general subject of what types of assets or liabilities are susceptible to equitable distribution. See Ch. 88-97, Laws of Fla. Statutes so passed should be considered in pari materia in order to harmonize them, if possible, for the purpose of giving effect to the legislative intent. State v. Nourse, 340 So.2d 966, 968 (Fla. 3d DCA 1976).

In our judgment, the above provisions were intended simply to codify preexisting decisional law involving the same subject matter. Compare Crapps v. Crapps, 501 So.2d 661, 663-64 (Fla. 1st DCA) (income derived from timber acreage owned by the husband prior to the marriage, or acquired by gift during the marriage and assets acquired from said income were subject to equitable distribution, because husband devoted considerable time during marriage to cultivating the property), review denied, 511 So.2d 297 (Fla.1987). Accord Sanders v....