Malkemes v. Malkemes

357 So. 2d 223 (1978)

Keith O. MALKEMES, Appellant,
v.
Kathryn W. MALKEMES, Appellee.

No. 77-1425.

District Court of Appeal of Florida, Second District.

March 29, 1978. Rehearing Denied April 27, 1978.

T.H. "Ted" Brousseau, Jr., Naples, for appellant.

George O. Kluttz of Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellee.

PER CURIAM.

The primary thrust of this appeal is whether the court properly awarded appellee a 100% special equity in a house and two condominium apartments which had been acquired in tenancy by the entirety during the parties' short marriage. This suit for dissolution was filed subsequent to Ball v. Ball, 335 So. 2d 5 (Fla. 1976), so none of the pre-Ball presumptions were applicable.

The record contains clear and convincing evidence to support the court's conclusion that the apartments were bought with money which the appellee had obtained from a source unconnected with the marital relationship and that she did not intend to make a gift of the funds. There is similar evidence with respect to the house except that not all of the monies for its purchase were furnished by the appellee. The record reflects that the appellant contemporaneously supplied $4,000 of his own funds toward the down payment and he signed a joint note with appellee for another $7,000 to be applied thereon. Since the down payment was approximately $30,000, the appellee's interest in the house should have been limited to 75%.

The other points raised by appellant are without merit. The judgment is modified to the extent that Kathryn W. Caston (formerly Malkemes) shall own an undivided 75% interest and Keith O. Malkemes shall own an undivided 25% interest in the following described property:

Lot 19, Block 127, Unit 4, MARCO BEACH SUBDIVISION, as recorded in Plat Book 6, Pages 32-37, Public Records of Collier County, Florida.

AFFIRMED, AS MODIFIED.

GRIMES, Acting C.J., and RYDER and DANAHY, JJ., concur.