Topper v. Stewart, 83-1711

• Decision Date: 24 April 1984
• Docket Number: No. 83-1711,83-1711
• Citation: 449 So.2d 373
• Parties: Goldie TOPPER, as Personal Representative of the Estate of Sarah Liptzen, Appellant, v. Joyce STEWART, Phyllis Stone, Shirley Zion, as Co-Personal Representative of the Estate of Sam Liptzen, Appellees.
• Court: Florida District Court of Appeals

Page 373

449 So.2d 373

Goldie TOPPER, as Personal Representative of the Estate of Sarah Liptzen, Appellant, v. Joyce STEWART, Phyllis Stone, Shirley Zion, as Co-Personal Representative of the Estate of Sam Liptzen, Appellees.

No. 83-1711.

District Court of Appeal of Florida Third District.

April 24, 1984.

Rehearing Denied May 25, 1984.

Ginsberg & Goldman and Daniel L. Ginsberg and Burton Ginsberg, North Miami Beach, for appellant.

Markus, Winter & Feldman and Sheldon I. Pivnik and Stuart Markus, Miami, for appellees.

Before HENDRY, BASKIN and JORGENSON, JJ.

PER CURIAM.

Goldie Topper, as personal representative of Sarah Liptzen's estate, appeals from a judgment in favor of Sam Liptzen's estate following appellate remand for further proceedings on appellant's complaint for an accounting. Topper v. Stewart, 412 So.2d 381 (Fla. 3d DCA), rev. denied, 419 So.2d 1201 (Fla.1982) (Topper II). For reasons more fully detailed below, we remand once again for further proceedings.

On June 26, 1963, Sam and Sarah, both of whom had been married previously and had grown children, entered into a prenuptial agreement. Paragraph 6 thereof provided:

6. The said SARAH GROSS, agrees that she has no rights, including the right of dower, in any real estate now owned by SAM LIPTZEN. However, said SAM LIPTZEN agrees that any property he purchases after the marriage of said parties, that the same be placed jointly in the names of said parties as tenants by the entirety, subject to all the incidents of ownership as such tenants by the entirety.

Sarah additionally agreed therein to limit her claims to Sam's estate to the sum of $10,000. Sam and Sarah were married on July 7, 1963. During the marriage, Sam purchased more than $300,000 worth of stocks in his name alone, which assets ultimately became part of Sam's estate, the value of which was nearly $434,000 at his death. Sam died October 26, 1976 and Sarah died November 16, 1976.

A declaratory judgment action regarding the parties' agreement resulted in a final judgment upholding the validity of the agreement, which was affirmed on appeal. Topper v. Stewart, 388 So.2d 1270 (Fla. 3d DCA 1980), rev. denied, 397 So.2d 779 (Fla.1981) (Topper I). This court's opinion stated that the question of whether Sam failed to place certain real and personal property acquired during the marriage in joint names as required by the agreement should be determined by the probate division of the circuit court.

Meanwhile, in the probate division, appellant filed a statement of claim on April 12, 1977 in proceedings in re Sam's estate. These proceedings resulted in the second Topper appeal, supra, and remand for an accounting by appellees. On February 23, 1983 judgment was entered by the trial court which found, after an evidentiary hearing, that because funds for the properties purchased by Sam alone during the marriage were derived from real estate owned by Sam prior to the marriage and referred to in the agreement, appellant was limited under the agreement to a recovery of $10,000, plus interest, although accountings were ordered per this court's mandate. This appeal followed denial of post-trial motions.

After seven years of litigation, the ultimate issue in this case remains whether the property acquired by Sam in his name alone properly belongs to his heirs as a substitution for the real estate he owned at the time the prenuptial agreement was drafted or whether this property acquired after the marriage should have been placed in the joint names of Sam and Sarah. The presumption, as expressed in Topper I, is that property acquired during a marriage is held jointly. In this case there exists a prenuptial agreement which removes certain property from that presumption. The appellees argue that other, different property should also be excluded from that presumption because it is a mere replacement for property validly excluded. Whether this property is in fact a substitute...