From Casetext: Smarter Legal Research

Della-Giustina v. Della-Giustina

District Court of Appeal of Florida, Fourth District
Jul 26, 1989
546 So. 2d 1146 (Fla. Dist. Ct. App. 1989)

Opinion

No. 88-1496.

July 26, 1989.

Appeal from the Circuit Court, Palm Beach County, James R. Stewart, Jr., J.

Kim Douglas Sherman of Sherman Rayson, Fort Lauderdale, for appellant.

Susan J. O'Hara, Palm Beach, for appellee.


We reverse and remand for further proceedings.

Although titled in the wife's name at the time of dissolution, the marital home and commercial property, previously held as tenancies by the entireties, are clearly marital assets subject to any claims of special equity and equitable distribution. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); and Ball v. Ball, 335 So.2d 5 (Fla. 1976). To achieve an equitable distribution of all the marital assets on remand the trial court may, at its discretion, redistribute any of the assets previously awarded in the final judgment of dissolution.

REVERSED AND REMANDED.

WALDEN, J., concurs.

WARNER, J., concurs specially with opinion.


With respect to the marital home and the commercial property, the trial court said in its final judgment, "The testimony concerning transfer of property for deceptive purposes is self-serving and not worthy of belief." The wife had argued below that the husband had transferred the properties to avoid creditors and thus being with unclean hands, could not seek to recover these properties in these proceedings, citing Studdle v. Studdle, 267 So.2d 688 (Fla. 2nd DCA 1972), and Marcel v. Marcel, 132 So.2d 210 (Fla. 2nd DCA 1961). I gather from the above statement that the trial court disregarded that argument, with which I am in accord. Both Studdle and Marcel predate Ball v. Ball, 335 So.2d 5 (Fla. 1976) and Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), and we are now governed by the standards enunciated in those latter two opinions with respect to consideration of special equity and equitable distribution. Furthermore, even if these properties were transferred to the wife to avoid creditors, there was no proof before the trial judge that any creditor was in fact hindered by the conveyance. Sponholtz v. Sponholtz, 190 So.2d 572 (Fla. 1966); Steele v. Lannon, 355 So.2d 190 (Fla. 2d DCA 1978). Thus, there was no basis on this ground to exclude their consideration as marital assets, subject to claims of special equity.


Summaries of

Della-Giustina v. Della-Giustina

District Court of Appeal of Florida, Fourth District
Jul 26, 1989
546 So. 2d 1146 (Fla. Dist. Ct. App. 1989)
Case details for

Della-Giustina v. Della-Giustina

Case Details

Full title:JOSEPH A. DELLA-GIUSTINA, APPELLANT, v. PATRICIA DELLA-GIUSTINA, APPELLEE

Court:District Court of Appeal of Florida, Fourth District

Date published: Jul 26, 1989

Citations

546 So. 2d 1146 (Fla. Dist. Ct. App. 1989)

Citing Cases

Straley v. Frank

Cases from district courts of appeal other than the Second that have been decided since enactment of the new…

Gay v. Gay

No Florida cases were found on the issue of whether a marital asset titled only in the name of the spouse…