Anderson v. Anderson 164 So. 2d 3

PER CURIAM.

This case is here upon petition for writ of certiorari to the District Court of Appeal, Third District, to review its judgment and decision reversing the Circuit Court of Dade County, See Anderson, v. Anderson, Fla.App.1963, 153 So.2d 24.

Petitioner, a husband, owned a tract of real estate encumbered by a mortgage. His wife, the respondent, drew checks upon their joint bank account and paid off the mortgage. The husband contended later the funds in the joint account belonged solely to him. The husband sold the property. His grantee executed a note and mortgage securing the purchase price in favor of the husband and wife. Not long thereafter the wife sued her husband for divorce and division of jointly owned property. The husband counterclaimed, seeking to reform the note and mortgage as being solely his property. He prevailed in this regard in the Circuit Court. The reversal in the District Court ensued. In its opinion, the District Court of Appeal stated the taking back of the purchase money note and mortgage to both parties raised a presumption of a gift therein to the wife which could only be overcome by a clear, positive and unequivocal showing no gift was intended. Petitioner relies mainly upon Hargett v. Hargett, 156 Fla. 730, 24 So.2d 305. However, the District Court of Appeal enunciated the same principle of law in its opinion expressed in Hargett v. Hargett, supra, regarding presumption of gift in the wife but decided the evidence was not strong enough to rebut the presumption in favor of the wife’s interest in the note and mortgage. We feel compelled to hold there was no conflict of law but only a reversal upon the facts in the decision of the District Court of Appeal, and that we must decline certiorari jurisdiction.

However, we note that the final decree is reversed in the litigation between the parties and upon remand it is apparent the Circuit Court in its further' consideration of the rights of the parties will take into consideration all facts existing at that time including the fact that the wife’s income is augmented by the decision of the District Court of Appeal that she is entitled to a joint interest in the note and mortgage. Prior to the reversal by the District Court of Appeal, the Circuit Court believed the wife had no property interest in the note and mortgage. This may have pertinent bearing in the final disposition of the issues of the case, including the amount allowed for alimony.

The writ is discharged and the petition dismissed.

DREW, C. J., and THOMAS, THOR-NAL, O’CONNELL and ERVIN, JJ., concur.

ROBERTS, J., concurs specially with opinion.

CALDWELL, J., concurs specially and concurs with ROBERTS, J.

*5ROBERTS, Justice

(concurring specially) .

On the question of whether or not the husband was the sole owner of a mortgage and note, the chancellor heard voluminous testimony, much of it of conflicting nature, and made a finding of fact and judicial determination that the petitioner-husband was the sole owner, and thus followed the decision of this court in Hargett v. Hargett, 156 Fla. 730, 24 So.2d 305. In my opinion, the testimony abundantly supported the decree.

The trial judge, having awarded the mortgage and note to the husband, proceeded to make a generous allowance of alimony to the wife, decreeing her a total of $1,000.00 per month for herself and three children. In doing so, he obviously acted on the assumption that he had properly denied her interest in the mortgage and, on the other hand, had decreed the full ownership to be with the husband. Had the trial court known that the respondent-wife would, on appeal, be awarded one-half interest in the mortgage, it is quite probable that he would not have been so generous in the allowance of alimony, because the financial needs of the wife were decreased by the decision of the Court of Appeal, and the husband’s ability to pay was reduced.

This author has reexamined the testimony heard by the chancellor in this case and also in the Hargett case, and the showing made at the trial level in the cause now under review was equal to, if not stronger than, that in the Hargett case. It is fair to assume that the District Court of Appeal did not have the same opportunity to examine and compare the testimony in Har-gett as we have here. Even though the same rule of law was announced, entirely inconsistent results were reached in the two cases. In my opinion it was error for the District Court of Appeal to reverse the chancellor on the facts, and it is unfortunate that under our restricted appellate jurisdiction a majority of the court holds that there is not sufficient showing to justify conflict certiorari.

In view of the foregoing, I concur in the judgment in order that the cause may be returned to the chancellor for reexamination of the alimony awarded, and to make an adjustment in accordance with the new situation with which the trial court will find itself confronted by virtue of the decision of the District Court of Appeal, and to make appropriate reduction.

CALDWELL, J., concurs.