Opinion
April 27, 1950.
Appeal from the Circuit Court for Dade County, William A. Herin, J.
Paul H. Brinson, Coral Gables, for appellant.
Jack Kehoe, Miami, for appellee.
This is an appeal by the husband from a final decree of the Circuit Court of Dade County, Florida, which awarded the husband a divorce from the wife on the ground of extreme cruelty. This decree settled or adjudicated existing claims and disputes between the parties as to described real and personal property. The husband's bill of complaint alleged that the parties commenced cohabitation on or about June 21, 1946, at Pontiac, Michigan, when they returned to the State of Florida, and the wife obtained a decree of divorce from her former husband under date of August 3, 1946. The wife's answer to the husband's bill of complaint admits that the parties shortly after August 3, 1946, entered into a common-law marriage agreement, consummated the marriage agreement and lived and cohabited together as husband and wife until the month of April, 1947.
We fail to find in the transcript any conflict or dispute in the testimony of the parties on the point that they lived and cohabited together as husband and wife, pursuant to an agreement, after June 21, 1946, continuously, until April, 1947. On this testimony the Special Master, in his report, recommended to the Chancellor that the elements of a common-law marriage had been clearly established pursuant to an agreement of the parties. Thereafter the relationship of husband and wife existed until a separation occurred in April, 1947. The final decree held that a common-law marriage existed and that the wife was guilty of extreme cruelty. It is contended here that the elements of a common-law marriage have not been sufficiently established. We have examined the record in the light of the contention made and the record reflects sufficient competent testimony to sustain both the recommendations of the Special Master and the decree of the Chancellor as to the existence (1) of the common-law marriage; and (2) that the wife was guilty of extreme cruelty.
The record reflects that the husband acquired by purchase a one-half undivided interest in the Ritz Tavern and described real estate situated in Dade County, Florida. Subsequent to his marriage with the appellee he acquired by purchase the remaining outstanding one-half interest in the Ritz Tavern and described real estate. In the acceptance of title thereto by warranty deed the grantees named were Joseph O'Connell and wife Margaret O'Connell. The parties hereto executed to the grantors a purchase price mortgage to the property under date of September 27, 1946. The Special Master recommended and the Chancellor below decreed that the wife-appellee, under this deed of conveyance, became a tenant in common with her husband; that the wife was a joint owner of a one-fourth undivided interest in the Ritz Tavern and described real estate, while the husband was the joint owner of a three-fourths undivided interest therein. The husband-appellant contends that the evidence is insufficient to support the conclusions of the Chancellor on the joint ownership of the property. We have held on several occasions when the property is purchased by the husband and deeded to the husband and wife jointly an estate by the entirety is created and the presumption of law is that such property was intended as a gift to the wife and will be so recognized and upheld until the presumption is overcome by competent testimony. The husband-appellant failed to carry the burden of proof as required by law. See Lieber v. Lieber, Fla., 40 So.2d 111; Baxter v. Baxter, 158 Fla. 886, 30 So.2d 492; Kollar v. Kollar, 155 Fla. 705, 21 So.2d 356, and similar cases.
The record discloses that the husband was approximately twenty years the senior of his wife. In his "courting days" he took his meals at the Tavern where she was employed as a waitress and left $5.00 and $10.00 tips for her concealed under his plate. Later when it appeared that his prestige with her was increasing he bought for her a nice fur coat and a dinner ring, thereafter one valued at around $2,500.00 — having diamonds and rubies. The bank account was arranged so her checks would be honored at her convenience. We are asked to reverse the Chancellor's decree and return these gifts to the husband-appellant on the theory that the wife was guilty of fraud and acting in bad faith in tweedling the same out of her unsophisticated husband. The ruling complained of is free from error as the law will permit a husband to shower gifts on his wife but the right to get the gifts back by the husband has not been clearly established. The wife's request for additional counsel fees is denied.
All questions briefed and argued have been carefully considered and we fail to find error in the record.
Affirmed.
TERRELL, Acting Chief Justice, and SEBRING and HOBSON, JJ., concur.