An interspousal gift is established by showing “ ‘(1) donative intent, (2) delivery or possession of the gift, and (3) surrender of dominion and control of the gift.’ “ Vigo v. Vigo, 15 So.3d 619, 622 (Fla. 3d DCA 2009) (quoting Mills v. Mills, 845 So.2d 230, 233 (Fla. 3d DCA 2003)). The burden is on the party seeking to prove an interest in the property to show it was an interspousal gift. Vigo, 15 So.3d at 622 (noting that the parties’ condominium was purchased during the marriage with the Husband’s nonmarital funds and it was titled solely in the Husband’s name, thus “at trial, the Wife was required to establish that the Husband intended to gift to her a one-half interest in the condominium”).
Hooker v. Hooker is a case involving equitable distribution. The parties had a prenuptial agreement that identified most of the parties’ assets as non-marital, but a dispute arose over two pieces of real property that were deemed by the trial court to be marital by virtue of interspousal gifts. Title to both properties remained solely with the Husband, which under the prenuptial agreement would indicate that they were non-marital, but other factors caused the trial court to determine that the two properties were gifted by the Husband to the marriage. The appellate court affirmed as to one property but reversed on the other.
An interspousal gift is established by showing (1) donative intent, (2) delivery or possession of the gift, and (3) surrender of dominion and control of the gift. The burden is on the party seeking to prove an interest in the property to show it was an interspousal gift. The question of donative intent is one of a preponderance of the credible evidence. Unsupported assertions in the testimony of either party are not dispositive of donative intent. Additionally, a clear and unmistakable intention on the part of the donor to make a gift of his property is an essential requisite of a gift, and this intention must be inconsistent with any other theory. When the grantor’s intent is to be determined from the conflicting testimony of the parties, it is the responsibility of the trial court to evaluate the weight and credibility of that testimony to arrive at a determination.
With the first property, the trial court found the following facts, which are supported by the record, to establish an interspousal gift of an interest in the property to the Wife:
- The property constituted the parties’ primary marital residence throughout the vast majority of the marriage and was where the parties raised their children.
- The Wife was extremely and directly involved in all aspects of the property as a residence and business.
- Both parties signed a mortgage document for a construction loan on the property, as well as the transfer deeds.
- The Wife believed that she had an interest in the property.
- The Wife’s father purchased the lottery ticket giving the parties the option to purchase the land.
- The Husband never told the Wife that she did not have an interest in the property, nor did he take any overt action to contradict the Wife’s belief that she had an interest.
- The Wife could and did treat this property as her own, and she was not limited in incurring expenses, to be paid for by the Husband, for maintaining and operating the home.
However, none of these facts evidence a clear and unmistakable intention on the part of the Husband to make a gift. A marital home is not automatically deemed a marital or shared asset. Without evidence of an intent on the part of the Husband to gift the Wife an interest in the property, his non-actions in regards to the property and the Wife’s contributions to the property are of little relevance to the analysis of an interspousal gift. The facts regarding the Wife’s involvement with the property simply evidence that the Wife took care of her residence, regardless of ownership. Furthermore, there are other business explanations for having the Wife as part of the construction loan mortgage document and the transfer deeds. What are most significant, though, are the facts that she never was liable on the loans and that her name never was included on any documents evidencing actual ownership when the Husband had multiple opportunities to acknowledge any interest he intended her to have.
With the second property, the trial court found the following facts, which are supported by the record, to establish an interspousal gift of an interest in the property to the Wife:
- The property constituted the family’s summer residence throughout the vast majority of the marriage.
- The Wife was extremely and directly involved in all aspects of the second property.
- The Wife understood from the Husband that she had an interest in this property as a wedding anniversary gift to her as evidenced by the Husband’s anniversary card.
- The Husband never told the Wife that she did not have an interest in the property, nor did he take any overt action to contradict the Wife’s belief that she had an interest.
- The Wife paid for some furnishings and incidentals for this residence from her separate funds.
- The Wife could and did treat the property as her own, and she was not limited in incurring expenses, to be paid for by the Husband, for maintaining and operating it.
Unlike with the first property, these facts evidence sufficient donative intent to uphold the trial court’s determination. The Husband’s clear and unmistakable intention with the second property was, at least in part, as a gift to the Wife, which was established through the Wife’s testimony about the Husband sending her a card for their tenth wedding anniversary with a picture of the property. This was after the Wife had expressed her desire to have a home up north and both parties searched for a suitable property. Additionally, the Wife purchased some furnishings and incidentals for the home from her separate funds.
Section 61.075(1) allows for unequal distribution of an asset when the court finds it is justified based on a non-exhaustive list of relevant factors. The trial court made written factual findings based on competent substantial evidence in the record and with consideration of the statutory factors when ordering an unequal distribution of the second property. The primary factors considered by the Court are that the Husband’s assets were primarily used to purchase the properties and the improvements, furniture and furnishings in the properties, and the Husband’s assets were used to pay for the daily expenses for the family living in the residences and maintaining the residences. Apart from these financial contributions, the Wife did contribute substantially to all decisions related to these homes and the care and education of the children raised in these homes, and her services as a homemaker. The Court considered the other factors enumerated in Florida Statute § 61.075(1), but primarily relies upon the financial contributions of the Husband to support unequal distribution of the properties to do equity and justice between the parties. Thus, the trial court complied with the requirements of the statute and appropriately considered the statutory factors, emphasizing which factors were most relevant under the circumstances of the case but maintaining that all were considered, in making its determination. The statute does not require the trial court to further justify the 25% award by assigning a specific dollar value to each party’s contributions. To the contrary, a percentage value better represents what type of interest in the second property the Husband intended to gift the Wife.