Shepherd v. Shepherd

• Decision Date: 02 December 1987
• Docket Number: No. 4-86-2703,4-86-2703
• Citation: 12 Fla. L. Weekly 2725,526 So.2d 95
• Parties: 12 Fla. L. Weekly 2725 Shelly Gay Brown SHEPHERD, Appellant, v. Patrick P. SHEPHERD, Appellee.
• Court: Florida District Court of Appeals

Page 95

526 So.2d 95

12 Fla. L. Weekly 2725

Shelly Gay Brown SHEPHERD, Appellant, v. Patrick P. SHEPHERD, Appellee.

No. 4-86-2703.

District Court of Appeal of Florida Fourth District.

Dec. 2, 1987.

Rehearing Denied Jan. 12, 1988.

Peggy Rowe-Linn of Law Offices of Peggy Rowe-Linn and Ronald Sales of Law Offices of Ronald Sales, P.A., West Palm Beach, for appellant.

Alfred J. Horowitz of Horowitz & Rolnick, Fort Lauderdale, for appellee.

GLICKSTEIN, Judge.

The former wife appeals final judgment rendered in a marriage dissolution action. We affirm in part, reverse in part, and remand.

Appellant married appellee in 1981, when she, a real estate associate, was 21 and he, a dentist, was 41. The parties lived together for about a year before they were married, and separated in 1985. A few weeks before the marriage, Dr. Shepherd conveyed his interest in three parcels of land to himself and his bride-to-be, as tenants in common with right of survivorship, by warranty deed. The parcels were the marital home, a vacant lot, and the office property in which his practice was housed.

Appellant contended these interests were conveyed to her as a gift. The husband testified no gift was intended; rather the transfer was made on the future wife's advice through an attorney she employed, purportedly to simplify estate planning. The court found in its final judgment that the husband's testimony reflected the actual facts.

The principal provisions of the judgment were as follows:

1. The husband was entitled to a special equity in the real property.

2. The wife was to receive 2 years of rehabilitative alimony in the amount of $2,000 per month.

3. The husband was to pay the wife's accountant fees, and a total of $12,000 in reasonable attorney's fees, with a credit for $2,500 already paid.

4. The wife was to keep her own IRA, her birds, worth approximately $2,000.00, her automobile and the husband's IRA worth about $6,200.

5. The husband was to keep the household furnishings and contents, his car, his practice and his cash on hand.

6. The husband was to pay all the couple's credit card debts and potential IRS and Commonwealth of Kentucky tax claims against him.

7. Each was to be responsible for the debt on the vehicle (s)he kept.

There was evidence before the court that the real property parcels had appreciated considerably in value during the marriage, as had the husband's dental practice, his interest in a partnership, and his interest in his pension plan.

The points on appeal, restated are:

I. Whether the trial court erred in awarding the husband a special equity interest in real property that was greater than the interest he held at the time of the marriage. We conclude it did not.

II. Whether the trial court erred in failing to award the wife a equitable distribution of any of the accretion in value of marital assets that occurred during the marriage. We conclude it did.

III. Whether the trial court erred in awarding the wife less than a reasonable attorney's fees and all costs, where the husband offered no evidence on the issue. We conclude it did, in light of our determination of the second issue.

I HUSBAND'S SPECIAL EQUITY

In essence the wife argues that because the husband had transferred to her a tenancy in common interest in three parcels of real property some three weeks before the marriage, the husband's special equity in those parcels could not extend to 100% of the property rights. This argument stands on the foundation of case law statements that a special equity is a vested interest in property that is either "brought into the marriage or acquired during the marriage because of contributions of services or funds over and above normal marital duties." Antonini v. Antonini, 473 So.2d 739, 741 (Fla. 1st DCA 1985) (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1200 (Fla.1980)). The party claiming a special equity has been said to have the burden of demonstrating his/her equitable interest to the exclusion of a reasonable doubt. Id. (citing Lindley v. Lindley, 84 So.2d 17, 20 (Fla.1955)).

We think Antonini reads more into Lindley than is there, or that appellant takes the latter principle out of context. The property at issue in Lindley consisted of two automobiles previously owned by a family partnership involving the wife's father, his children, and the husband, but transferred together with title certificates to the husband individually when he gave up his partnership interest. In that context it was stated that the wife, who claimed joint ownership, had, but failed to meet, the burden of showing that she had acquired a legal or equitable interest in the automobiles, to the exclusion of a reasonable doubt. Even if the standard stated in Lindley applies in the instant case, the standard of review is the presence of competent, substantial evidence.

Appellant says that because of the title transfer as to three pieces of real property that took place before the marriage, the husband could claim only his tenancy in common interest as special equity. By implication, the wife is saying that she brought her tenancy in common interest in those parcels into the marriage with her, and therefore should retain those interests at dissolution. This reading of the law can be correct only if the language of Canakaris and other cases is read mechanically. The result of such a reading is that a transfer of property rights in contemplation of marriage is to be handled differently from a similar transfer at the time of marriage or after the wedding ceremony. In the former situation, says the wife, each of the parties gets to keep the interest he or she had as a result of the premarital transfer; albeit when there has been a transfer of property after the parties were already married, it is possible at marriage dissolution for the transferring parties to show there was no donative intent and prove a special equity. The law cannot be so nonsensical. Why would society make a purported premarital "gift" sacrosanct, when it allows the transferor to show otherwise if the "gift" was made during the marriage?

The husband rebuts the wife's argument by citing Ward v. Ward, 476 So.2d 1292 (Fla. 4th DCA 1985), and cases cited therein. In Ward it was held that the wife's mere conjecture that the husband may have intended a gift, in the face of his contrary assertion, could not overcome the husband's special equity in the condominium he purchased entirely with money he earned before the marriage. Ward differs factually from the instant case in that there the transfer of title apparently took place after the pair married. However, a quote in Ward from Brown v. Brown, 429 So.2d 846, 847 (Fla. 4th DCA 1983), quoting in turn Ball v. Ball, 335 So.2d 5, 7 (Fla.1976), states law which seems to apply regardless of the timing of such a title transfer. The key statement is "that a special equity is created by an unrebutted showing ... that all of the consideration for property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship." The Ball court went on to say that absent contradictory evidence that a gift was intended the property should be awarded to the transferring spouse as if he created the tenancy solely for survivorship purposes during coverture.

We do not see why the principle quoted verbatim above should not apply equally when the title transfer has been prior to the marriage and the form of ownership interest that of tenancy in common. The key is, whose money acquired before the marriage bought the property, and can the wife prove that the husband intended a gift of the undivided half interest. The husband here testified that the wife persuaded him it would be simpler to provide for his children in the event of his death if the property were fitted in the manner she recommended, and that he did not intend a gift to her. The court had a right to credit this over the wife's assertion that the transfers were a gift.

Appellee also points out that Ingram v. Ingram, 379 So.2d 955 (Fla.1980), on which appellant relies because it rejects a special equity for the husband, does not state directly or indirectly that where title to property was acquired before a marriage the other marriage partner cannot, as a matter of law, have a special equity. In Ingram the wife made the down payment on the property some time before the marriage, and both parties apparently made contributions to the house payments during the marriage. The husband was not entitled to a special equity because the trial court found there was none and the intermediate court had failed to find that this was an abuse of discretion. One may reasonably surmise there was insufficient proof the contributions made by the husband to the house payments came from outside the marital resources.

Duncan v. Duncan, 379 So.2d 949 (Fla.1980), like Canakaris, speaks of the discretion of the trial court in deciding such matters as this. Duncan also inveighs against creating inflexible rules that would unduly restrict the trial court in determining what is equitable and just. Id. at 951.

It would be unwise to set up a different rule from that usually applicable, merely because the title transfer took place three weeks before the marriage ceremony. The trial court did not abuse its discretion when it determined the husband had a special equity in the entire property interests in the three parcels in which he had changed the form of ownership to tenants in common with right of survivorship together with his then wife-to-be.

II ABSENCE OF EQUITABLE DISTRIBUTION OF MARITAL ASSETS

The wife claims there was no equitable distribution whatever, and points out that there had been a considerable increase in the value of certain substantial marital assets during the marriage. The husband responds there was definitely marital property awarded to the wife and other marital property awarded to the husband, and that the court...