Smith v. Smith, 78-2149

• Decision Date: 09 October 1979
• Docket Number: No. 78-2149,78-2149
• Citation: 375 So.2d 1138
• Parties: William H. SMITH, Appellant, v. Treva E. SMITH and Gary Hale, Appellees.
• Court: Florida District Court of Appeals

Page 1138

375 So.2d 1138

William H. SMITH, Appellant, v. Treva E. SMITH and Gary Hale, Appellees.

No. 78-2149.

District Court of Appeal of Florida, Third District.

Oct. 9, 1979.

Rehearing Denied Nov. 6, 1979.

Sidney L. Syna, Miami, for appellant.

Edward R. Rhynard, Perrine, Telisman & Lieberman and Arnold Lieberman, Coral Gables, for appellees.

Before HENDRY, KEHOE and SCHWARTZ, JJ.

HENDRY, Judge.

The appellant, respondent/husband, and appellee, petitioner/wife, were married in 1964. Three children were born of the marriage. In 1977 because of apparent irreconcilable marital difficulties petitions for dissolution of marriage were filed. The wife's petition preceded that of the husband. Both actions were consolidated and they proceeded thereafter as consolidated actions. Appellant/husband also filed in the cause a third party action against appellee, Gary Hale, the brother of the appellee/wife, seeking to set aside a deed to the marital home which the wife had delivered to her brother.

The pertinent facts of the cause reveal that in 1972 the husband and wife acquired a home at the purchase price of $65,000.00, title to which was held by them as tenants by the entireties. It was listed for sale by the parties at about the time they were on the verge of seeking dissolution of their marriage. The property was listed for sale at $125,000.00. In the event of a sale each acknowledged that they were to share equally in the net proceeds.

There came a time when the husband learned that his wife was planning to divorce him, and he represented to the court that because of his love for his wife and children, and his desire to show her that he was making an honest effort to correct the grounds of complaint his wife had regarding his past conduct, he had deeded his interest in the real property to her by quit claim deed. This was done with the understanding between husband and wife that the wife would reconvey the one-half interest in the marital home upon the husband rehabilitating himself. However, the time frame was not clearly specified by the parties. ¹ The husband continued to make the mortgage payments. Although the record reflects that the husband engaged in a course of conduct which indicated a good faith effort to save the marriage, the wife decided to file for dissolution. Prior to filing in May 1977, however, the wife, without the knowledge of the husband, executed a quit claim deed to the property to her brother, Gary Hale, in April 1977. ² These conveyances are of major concern in review of the final judgment of the trial court, which recites in part:

"ORDERED AND ADJUDGED that: . . .

"5. The court has previously found that the conveyance by the Husband to the Wife of the Husband's interest in the premises known as 7800 S. W. 78th Street, Miami, Florida, was executed freely and voluntarily and therefore the court finds that said residence is the sole and separate property of the Wife free and clear of any interest which the Husband might have subject to any conveyances subsequently made and alternatively the court so awards to the Wife as lump sum alimony any interest which the Husband might have in the premises known as 7800 S. W. 78th Street, Miami, Dade County, Florida, by virtue of these proceedings and findings and awards of this court . . .

"7. The Court finds in favor of the Additional Party Defendant Gary Hale, and against the Respondent/Husband/Claimant, William H. Smith, upon the issues contained in the claim against the Additional Party Defendant as amended and denies any relief in connection therewith."

We find that we must reverse the trial court on this matter. Although we specifically affirm the provisions regarding the dissolution of marriage, the child custody and visitation rights, the provisions regarding the real property constitute error, as a matter of law. A thorough review of the evidence contained in the record demonstrates the appellant's contention that the agreement between the parties to temporarily convey the husband's interest in the property to the wife is, under the facts and circumstances, legally unenforceable. Since the transfer was part of the conditions of an attempted reconciliation, the transaction was one of contract rather than gift. See, Fuller v. Fuller, 215 So.2d 507 (Fla. 4th DCA 1968) and cf. Ball v. Ball, 335 So.2d 5 (Fla.1976). It is a fundamental principle of the law of contracts that in order for a contract to be binding and enforceable it must be definite and certain as to its terms and obligations. See generally, 7 Fla.Jur.,...