Gillard v. Gillard 417 So. 2d 1136

FRANK D. UPCHURCH, Jr., Judge.

The wife appeals from a final judgment of dissolution. She questions the court’s award of a special equity to the husband in two parcels of real property. One of the parcels was acquired by the husband prior to the marriage and the other was acquired during the marriage with his separate funds. Both parcels were deeded to husband and wife during the marriage as tenants by the entirety.

The trial judge correctly applied the rule in Ball v. Ball, 335 So.2d 5 (Fla.1976), that upon the unrebutted showing by the husband that he acquired or purchased the properties from sources unconnected with the marriage, a presumption arose that he had a special equity in the properties and it was up to the wife to establish by contradictory evidence that a gift was intended. This she did not do. While the rule in Ball enjoys no great popularity with us, see Wright v. Wright, 388 So.2d 1319 (Fla. 5th DCA 1980), cert. granted Fla.Sup.Ct. No. 59,907, and Marsh v. Marsh, 399 So.2d 433 (Fla. 5th DCA 1981), cert. granted, Fla.Sup. Ct., No. 60,823, it is up to the supreme court to make any changes in it.

AFFIRMED.

SHARP, J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

The trial judge here applied Ball v. Ball, 335 So.2d 5 (Fla.1976) in the usual manner, holding as a matter of law that a formal conveyance of property by one spouse to both is no basis upon which to infer a donative intent as to the property right conveyed. I concur in an affirmance of the trial judge’s application of Ball v. Ball for the reasons given in the dissent in Marsh v. Marsh, 399 So.2d 433 (Fla. 5th DCA 1981). If on the pending review of Marsh, the Florida Supreme Court modifies the Ball rule in this particular, this case should be reversed.