Straley v. Frank

• Decision Date: 31 July 1991
• Docket Number: 90-1546,Nos. 89-3505,s. 89-3505
• Parties: 16 Fla. L. Weekly D2018 Mark K. STRALEY, Appellant, v. Stacy FRANK, Appellee.
• Court: Florida District Court of Appeals

Page 334

585 So.2d 334

16 Fla. L. Weekly D2018

Mark K. STRALEY, Appellant, v. Stacy FRANK, Appellee.

Nos. 89-3505, 90-1546.

District Court of Appeal of Florida Second District.

July 31, 1991.

Rehearing Denied as Moot Sept. 19, 1991.

Raymond A. Alley, Jr., Tampa, for appellant.

Susan Latham Steffey and Stephen W. Sessums, of Sessums & Mason, P.A., Tampa, for appellee.

ON MOTION FOR REHEARING EN BANC

PER CURIAM.

Pursuant to motion of the appellant, Mark K. Straley, this case has been considered en banc in order to maintain consistency in the case law of the Second District Court of Appeal, for whom we have been appointed to sit by order of the Chief Justice of the Florida Supreme Court. We withdraw the opinion issued herein on October 11, 1990 by the three-judge panel and substitute therefor the following:

The trial court below, based on an apparent misconstruction of the law of equitable distribution, inequitably distributed the assets and liabilities of the parties to the instant dissolution action, Mark Straley and Stacy Frank. In several instances the court failed to properly distinguish between marital and premarital assets, and violated tenets set forth by the Florida Supreme Court in Ball v. Ball, 335 So.2d 5 (Fla.1976) and Landay v. Landay, 429 So.2d 1197 (Fla.1983), and by the Florida Legislature in section 61.075, Florida Statutes (1989).

Straley and Frank are both attorneys. They were married in 1984 and separated four years later in 1988. Since Straley had practiced law six years longer than his wife, he entered the marriage with more assets. He placed these assets into joint names with his wife for the purpose, according to his trial testimony, of estate planning and loan refinancing. No testimony was presented by Frank that a gift of Straley's premarital assets was made to her.

Frank fared very well at the hands of the trial court. She entered this four-year childless, two-career marriage with roughly $9,000.00 in assets and an embryonic law practice that was not producing income. She exited the marriage with approximately $150,000.00 in assets, no liabilities, and an annual income of $54,350.00 from her legal employment. Indeed, the trial court awarded Frank more assets than she asked for in open court at trial. Straley, on the other hand, was denied all special equity claims and was ordered by the trial court to pay some $195,000.00 in debts, fees, and costs exclusive of his own attorney fees and costs. The trial court ordered Straley to pay $111,006.00 in unsecured marital debts, a fee for Frank's attorney in the amount of $71,706.50, and her costs of $12,836.32. Straley also incurred a personal attorney fee of $25,000.00 and costs of his own in the amount of $13,280.85. Therefore, his aggregate indebtedness, after judgment, was almost $234,000.00.

In support of the result reached by the trial court, an argument has been advanced (by the original panel and Frank's counsel at oral argument) which repudiates the Florida Supreme Court case of Ball, a venture not yet undertaken by the Florida Supreme Court itself. The rationale employed by the anti-Ball argument is that the enactment of section 61.075(3)(a)5, which became effective on October 1, 1988, has nullified Ball and placed upon the claimant to a special equity in jointly titled property a two-fold burden of proof: (1) to demonstrate that the property was derived from a non-marital source and (2) to negate the intendment of gift to the other spouse. ¹ Given this interpretation, of course, a trial court's denial of special equity in jointly titled property can never be successfully challenged on appeal.

In Ball, the Florida Supreme Court wrote:

The premise that record title bespeaks an equal division is, of course, only the starting point for a property division. Either spouse has the right to attempt to establish a "special equity" in the realty by reason of his or her extraordinary contribution toward its acquisition, either financially or through personal industry and service to the other party. The other party, of course, can negate the attempted showing or affirmatively attempt to show that a gift was intended. We are not now called upon to determine the range of circumstances which might create a special equity. Consistent with prior decisional law, however, we hold that a special equity is created by an unrebutted showing, as was developed here, 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. In these cases the property should be awarded to that spouse, as if the tenancy were created solely for survivorship purposes during coverture, in the absence of contradictory evidence that a gift was intended.

The enactment of section 61.075(3)(a)5 is nothing more nor less than a simplified codification of the Ball doctrine itself. Jointly titled property is presumed to be a marital asset. If one spouse claims a special equity in such property, that spouse has the burden of proof to support the claim. The spouse meets that burden, as explained in Ball, by an unrebutted showing that he or she furnished all of the consideration for the property from a source clearly unconnected with the marital relationship. Thereupon, that spouse is entitled to an award of the claimed special equity "in the absence of contradictory evidence that a gift was intended." Ball at 7. That contradictory evidence, of course, is the burden of the other spouse, who is relying on the nominal joint title in opposing the special equity.

Contrary to the anti-Ball argument, nothing in section 61.075(3)(a)5 purports to undo the "no gift" presumption involved in Ball. That presumption, created by the claimant's unrebutted proof (of a non-marital source) is not encompassed by the new statute. Nothing in the statute itself--indeed, nothing in the statute's legislative history or the committee staff reports relating to it--so much as mentions Ball or any intent to revise it or recede from it. Surely, if the Florida Legislature had intended such a significant change in the domestic law of Florida, it would have done so in an explicit and unmistakable fashion. That is not the case.

Several treatises have considered the effect of the statute on prior case law. In Florida Dissolution of Marriage Sec. 15.18 (3d ed. 1990), the author states that a spouse seeking to prove a special equity in property obtained prior to the marriage will presumably have to go through the same process as under prior law, citing to Ball, and notes that Ball is still cited as the standard for determining a special equity. Secs. 15.18, 16.9. In section 16.17, the author reaffirms that there is no longer a presumption of a gift. Similarly, in an article published in The Florida Bar Journal shortly after the statute was enacted, Boyer and Ramers, Equitable Distribution in Florida: Redistributing the Bundle of Rights and Responsibilities, 62 Fla.B.J. 31 (1988), the authors continue to cite to Ball v. Ball, noting that under the statute, jointly held property becomes non-marital in whole or in part when one spouse's special equity claim overcomes the presumption that it is marital property.

To claim a special equity, a spouse must prove he contributed services or funds toward a specific, tangible property ... For the most part, a special equity arises when one contributes funds from a source unconnected with the marital relationship. [footnote citing to Ball v. Ball omitted]. The non-contributing spouse rebuts by showing his spouse intended to make a gift to him when she put the property in joint names.

Id. Thus, it appears that these commentators do not see the statute as overruling Ball or the "no gift" presumption.

The anti-Ball argument also contravenes prior case law from the Second District Court of Appeal. See, e.g., Davis v. Carr, 554 So.2d 669 (Fla. 2d DCA 1990) (wherein the court followed the Ball formula in reversing a trial court that denied a special equity in the face of uncontradicted testimony that certain assets were traceable to a premarital source) and Miceli v. Miceli, 533 So.2d 1171 (Fla. 2d DCA 1988) (wherein the court stated that section 61.075 is "essentially" a codification of existing case law). The 1988 statutory enactment was relevant to these decisions since an appellate court is generally required to apply the law in effect at the time of the disposition of the appeal. Cantor v. Davis, 489 So.2d 18 (Fla.1986); Florida Patient's Compensation Fund v. Von Stetina, 474 So.2d 783 (Fla.1985); Hall v. Billy Jack's, Inc., 458 So.2d 760 (Fla.1984), rev. denied, 491 So.2d 279 (Fla.1986).

Cases from district courts of appeal other than the Second that have been decided since enactment of the new equitable distribution statute also have continued to apply the Ball doctrine in deciding special equity issues. See, e.g., Robertson v. Robertson, 569 So.2d 852 (Fla. 4th DCA 1990); Milton v. Milton, 567 So.2d 477 (Fla. 1st DCA 1990); Martinez v. Martinez, 573 So.2d 37 (Fla. 1st DCA 1990); Hoffman v. Hoffman, 552 So.2d 958 (Fla. 1st DCA 1989), appeal dismissed, 558 So.2d 18 (Fla.1990); Rouer v. Rouer, 548 So.2d 848 (Fla. 3d DCA 1989); and Della-Giustina v. Della-Giustina, 546 So.2d 1146 (Fla. 4th DCA 1989). None of these cases considered the 1988 enactment of section 61.075 to be a modification of the Ball doctrine. The absence of such consideration clearly indicates that no other court has even flirted with the innovative concept urged upon us in the instant case.

On appeal Straley challenges as inequitable the trial court's determination and distribution of marital assets and liabilities. Those assets include, inter alia, the following real and personal property: Straley's interest in two speculative real estate investment partnerships owned prior to marriage (601 South Florida Avenue Land Trust and Harbor Property Associates); ² a 21-foot Mako motorboat...