
    Harry W. FERRISS, Appellant, v. Mary Frances Ray FERRISS, Appellee.
    No. GG-450.
    District Court of Appeal of Florida, First District.
    March 22, 1978.
    Rehearing Denied May 8, 1978.
    Calvin W. Wilson, Pensacola, for appellant.
    James D. Swearingen of Harrell, Wilt-shire, Stone & Swearingen, Pensacola, for appellee.
   McCORD, Chief Judge.

This is an appeal from a final judgment in a dissolution of marriage action. Appellant husband contends that the court erred in awarding appellee wife as rehabilitative or lump sum alimony the husband’s interest in the marital home of the parties owned as tenants by the entirety. We affirm.

The parties were married in 1947. At the time of the dissolution, the husband was 62 years of age and the wife 51. No children were born of the marriage. Neither does it appear that either party initially took appreciable assets into the marriage relationship. For the first 15 years, the husband and wife both worked together in the husband’s automotive supply business. When that business was dissolved in 1962, the husband, who suffered from a disability resulting from a mild form of epilepsy, retired. In 1965, he commenced receiving social security benefits. The wife took a part-time job after the business dissolved working two afternoons per week at $4 per hour. In 1972, she took a second job, and between the two jobs, worked a standard 40 hour week. When the business was dissolved, a judgment in the sum of $250,000 was obtained by a third party against both the husband and the wife. That judgment was later compromised and satisfied by the payment of $35,000 obtained from the sale of the marital home. At that time, the parties owned only modest assets. Thereafter, the husband inherited from his mother a Vs interest in 26 acres of property. Three acres of that property was subsequently condemned by the Department of Transportation, and the husband received $100,000 therefor. With part of this money he purchased property and had a home built for himself and his wife. Title was taken as tenants by the entirety. With the remainder of the money, together with some of the money left over from the sale of the marital home, the husband purchased stock. He obtained a release from the wife for $20,000 which had been put in an open account in her name in order to purchase this stock for which he spent $58,000. The stock declined in value and at the time of the hearing in this cause was worth only $5,000.

The parties had discussed the possibility of dissolution of their marriage for about one year prior to the husband’s filing the dissolution petition. Around the time of the initial discussions, the husband put his Vs interest in the property left to him by his mother in a trust to his children. This property is worth between $100,000 and $150,000. The trust agreement provides that the husband will receive the income from the trust and as much as the trustees determine is necessary for his health, support and maintenance. The husband’s financial affidavit reflected that he received $276.60 per month in social security benefits, $325 per month from a mortgage on the parties’ original marital home (which will last for six more years), half interest in the stocks, half interest in a savings account (approximately $1,000) and his interest in the trust property. The wife’s affidavit reflected a savings account of $2,400, a half interest in the mortgage ($325 per month for six years) and $360 per month in earnings from her two jobs). She also had a one-half interest in the stocks and the joint savings account of the parties. The second marital home of the parties was being sold at the time of the hearing below, and it was expected that the total equity in the home would be approximately $19,000.

The trial court awarded wife (1) all the furniture and fixtures in the marital home, (2) a diamond ring given to her by the husband, with a stipulation that she return the ring to the family at her death, (3) a one-half interest in the mortgage ($325 per month for six years), (4) a 1974 Plymouth automobile, (5) a one-half interest in the stocks, (6) a one-half interest in the joint savings account, and (7) all of the net proceeds received from the sale of the marital home, to be awarded as aforesaid as “rehabilitative or lump sum alimony.” The wife also received an award of $500 for her attorney’s fees. She was not awarded any part of the husband’s Vs interest in the property left to him by his mother. The husband was awarded a Honda automobile, one-half of the mortgage interest, one-half interest in the stocks, one-half interest in the joint savings account, and the total trust created by his inheritance from his mother.

As above stated, the sole bone of contention here is the award to the wife of the husband’s one-half interest in the approximately $19,000 value of the marital home. As can be readily seen, the husband is left with substantially greater assets than the wife. This was a 30-year marriage throughout which the wife worked continuously while the husband retired in 1962. Also, the wife prepared special diets for the husband and gave him special care throughout the marriage because of his illness. Although disabled through the last half of the parties’ marriage, the husband has managed to play golf several times a week, read books and imprudently invest large sums of money once maintained in the parties’ joint and individual savings accounts. The wife must continue to work at employment which pays her only $360 per month for a 40-hour week. The husband, on the other hand, has the income from a $100,000 to $150,000 trust, and the right to receive any principal that may be necessary for his support and maintenance. While it was not proper to award the wife the husband’s interest in the marital home as rehabilitative alimony since she has been constantly working throughout the marriage and is continuing to work, we find no error or abuse of discretion in the trial court’s award of such interest as lump sum alimony. Compare Brown v. Brown, 300 So.2d 719 (Fla. 1 DCA 1974); Maroun v. Maroun, 277 So.2d 572 (Fla. 3 DCA 1973); Linares v. Linares, 292 So.2d 63 (Fla. 3 DCA 1974); Baker v. Baker, 299 So.2d 138 (Fla. 3 DCA 1974); Keller v. Keller, 302 So.2d 795 (Fla. 3 DCA 1974); Walton v. Walton, 290 So.2d 110 (Fla. 3 DCA 1974); Collazo v. Collazo, 318 So.2d 164 (Fla. 3 DCA 1975).

AFFIRMED.

McLANE, RALPH M., Associate Judge, concurs.

BOYER, J., dissents.

BOYER, Judge,

dissenting.

As is noted from the factual recitation in the foregoing opinion, the assets acquired during coverture, except the marital home and furniture and fixtures, were fairly well divided. The husband makes no issue of the award to the wife of the furniture and fixtures. But there is no basis in the record for awarding the wife the husband’s equity in the marital home. She established no special equity beyond her own V2 interest nor do the facts demonstrate the need for alimony. Indeed, the wife is in a better position to maintain herself than is the husband.

Although sought, the wife can find no solace in this court’s opinion in Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974). While I dissented in that case it was endorsed by the majority of a panel of this court and must therefore be recognized as precedent. (See Goldman v. Goldman, 333 So.2d 120 (Fla. 1st DCA 1976)) However, our Brown decision is only authority for that which was there held. It is factually distinguishable from the ease sub judice. In that case, in the words of the writer: “While the husband accumulated material wealth, the wife dutifully kept house and assumed the primary responsibility for raising and caring for the four male children born of this marriage.” Sub judice, there were no children of the marriage and there is no evidence of the wife’s participation in the marriage venture other than her participation in the business and her subsequent employment which clearly entitles her to her interest in the marital assets but there is nothing to establish her entitlement to the husband’s interests.

In addition, the author of the Brown opinion stated:

“ * * * In addition, we have before us a factual situation which is still prevalent even in this modern day of women’s liberation, i. e., a wife who has foregone pursuing a professional career and the accumulation of a personal estate in order to be a fulltime mother and homemaker while the husband remains in the market place providing for the material needs of his family and accumulating a sizeable personal estate. * * * ” (300 So.2d 722)

Such are not the facts sub judice.

Another material fact in the Brown decision was the husband’s admitted efforts and motivation to accumulate wealth in his own name in order to prepare for a long desired divorce. No such facts are here present. Indeed, a substantial majority of the assets of the parties which were held in both names were acquired with funds derived from the husband’s inheritance. Certainly there was no scheme nor motivation as reflected in the Brown opinion.

Closely analyzed, the Brown decision is authority for the position of appellant. There it was held:

“ * * * Lump sum alimony is no longer frowned upon in adjusting the material wealth of the parties at the time of dissolution of the marriage. * * * Husband and wife are now truly partners in the marital venture sharing equal rights and obligations.
“The ultimate question is now reached. How shall the material wealth of a marriage which is being dissolved be divided when one partner, the wife, has contributed her time to the marital home and the children of the parties while the husband has pursued the accumulation of material goods. The evolution of the law of alimony that we have reviewed in length shows that today the contributions of each party to the accumulation of material assets must be considered in dissolving the marital partnership. * * ” (300 So.2d 725-726) (Emphasis added)

Sub judice the learned trial judge went beyond the equal division of the partnership assets and awarded to the wife, without need being shown, the husband’s interest in the equity in the marital home. That he was not authorized to do. (See, for example, Baker v. Baker, 315 So.2d 217 (Fla. 1st DCA 1975) authored by the same judge who authored the Brown opinion)

Numerous cases have held that the award to a self-supporting wife the husband’s interest in the marital home is an abuse of discretion. (See, for example, Woodland v. Woodland, 293 So.2d 370 (Fla. 4th DCA 1974); DeLones v. DeLones, 297 So.2d 585 (Fla. 3rd DCA 1974); Kennedy v. Kennedy, 303 So.2d 629 (Fla.1974); Venzer v. Venzer, 308 So.2d 544 (Fla. 3rd DCA 1975); Cannon v. Cannon, 323 So.2d 9 (Fla. 1st DCA 1975); Gesford v. Gesford, 337 So.2d 1017 (Fla. 4th DCA 1976) and Bailey v. Bailey, 340 So.2d 933 (Fla. 4th DCA 1976). See also Canakaris v. Canakaris, 356 So.2d 858 (Fla. 1st DCA 1978) Case no. FF-265, Opinion filed March 17, 1978.

I would reverse.

ON PETITION FOR REHEARING

McCORD, Chief Judge.

Appellant’s petition for rehearing points out that the foregoing opinion erroneously states the year appellee took a second job to have been 1972 when in fact it was 1975. We acknowledge that the record shows such year to have been 1975. We point out, however, that the Court was led into this error by appellant’s brief which states the year appellee began the second job was 1972. We have considered the other points raised by the petition for rehearing and find them to be without merit.

Rehearing denied.

BOYER, J., and McLANE, RALPH M., Associate Judge, CONCUR.  