Sharp v. Hamilton
| Citation | 13 Fla. L. Weekly 74,520 So.2d 9 |
| Decision Date | 04 February 1988 |
| Docket Number | Nos. 69535,69536,s. 69535 |
| Parties | 13 Fla. L. Weekly 74 Margaret SHARP, Petitioner, v. Magali C. HAMILTON, Respondent. H.S. MUSSELWHITE, Petitioner, v. Magali C. HAMILTON, Respondent. |
| Court | Florida Supreme Court |
William A. Morrison of William A. Morrison, P.A., Altamonte Springs, for Margaret Sharp.
Tucker H. Byrd of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for H.S. Musselwhite.
J. Don Friedman of Friedman & Friedman, P.A., Longwood, for respondent.
This cause is before the Court on petition to review the holding in Sharp v. Hamilton, 495 So.2d 235 (Fla. 5th DCA 1986), in which the Fifth District certified its result to be in direct conflict with Hillman v. McCutchen, 166 So.2d 611 (Fla. 3d DCA), cert. denied, 171 So.2d 391 (FLa.1964). We have jurisdiction. Art. V, § 3(b)(4), Fla.Const.
Magali and L.E. Hamilton, as husband and wife, were the owners of real property in Seminole County, Florida, as tenants by the entirety. On May 24, 1984, a final judgment of dissolution of marriage awarded title of the real property in fee simple absolute to Magali Hamilton as "lump sum" alimony. During the Hamiltons' marriage, Mr. Hamilton executed, on his own, a $10,000 mortgage on the entireties property in favor of petitioner Margaret Sharp. On November 12, 1975, a final judgment was entered against Mr. Hamilton for $22,608.34 in favor of petitioner Musselwhite.
Sharp filed a complaint seeking to foreclose her mortgage on the subject property. Respondent Magali Hamilton filed a cross-claim against Sharp, adding Musselwhite as a party cross-defendant, seeking to quiet title to the real property as to Sharp's mortgage and Musselwhite's judgment lien, alleging, inter alia, she had been awarded title to the subject real property as lump sum alimony, free and clear of any outstanding claims. Musselwhite counterclaimed against Mrs. Hamilton seeking a declaratory judgment regarding his rights against the property. Pursuant to a stipulation entered into by the parties, the trial court entered a summary final judgment in favor of Mrs. Hamilton, finding the final judgment of dissolution awarding Mrs. Hamilton title to the property as lump sum alimony vested ownership of the property in her free and clear of Sharp's mortgage and Musselwhite's judgment lien. Consequently, the trial court quieted title in favor of Mrs. Hamilton.
On appeal, the District Court, relying on the rationale of the Second District in Liberman v. Kelso, 354 So.2d 137 (Fla. 2d DCA 1978), affirmed the trial court's decision and certified its result to be in express and direct conflict with the decision in Hillman. As in Liberman, the issue we must resolve is whether upon dissolution of the marital relationship, Mr. Hamilton acquired an undivided one-half interest in the entireties property upon which Sharp's mortgage and Musselwhite's judgment lien could attach.
In Hillman, the husband unilaterally executed a mortgage on entireties property. When the parties divorced, the property was awarded to the wife as lump sum alimony. In a suit to foreclose the mortgage, the lower court denied foreclosure and cancelled the mortgage. On appeal the Third District reversed, reasoning that upon dissolution, title to the property became vested in the husband and wife as tenants in common pursuant to section 689.15, Florida Statutes (1963), for the "twinkling of a legal eye," thereby subjecting the husband's undivided one-half interest to the mortgage lien before sole title vested in the wife.
Even though section 689.15, Florida Statutes (1985), provides that a tenancy by the entirety becomes a tenancy in common by operation of law upon dissolution of marriage, we reject the "twinkling of a legal eye" analysis of the Third District. Entireties property is not subject to a lien against only one tenant. Teardo v. Teardo, 461 So.2d 276 (Fla. 5th DCA 1985). We are not persuaded by the fiction fashioned by the Third District that there is a moment in time in which a judgment lien or a mortgage lien held against one of the tenants attaches to the entireties property upon dissolution when sole title to the property is awarded to one spouse in settlement of divorce by a final decree...
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Freda v. Commercial Trust Co. of New Jersey
...one spouse will not survive the distribution through a divorce decree of the affected real estate to the other spouse. In Sharp v. Hamilton, 520 So.2d 9 (Fla.1988), the husband, during the marriage, granted a mortgage on real estate he owned with his wife as tenants by the entirety. Their s......
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