Jernigan v. Jernigan

579 So. 2d 858, 1991 Fla. App. LEXIS 4595, 1991 WL 80915

• Court: District Court of Appeal of Florida
• Decided: May 17, 1991
• Docket: No. 90-02420
• Status: Published

Opinion

PER CURIAM.

This cause is before us on appeal from a dissolution of marriage in which the trial court awarded a special equity in the marital residence. Appellant raises one issue which requires reversal.

The parties were married on November 8, 1986. After several years of marriage, Mrs. Jernigan filed for dissolution of marriage and claimed a special equity in the marital home. Mr. Jernigan counter-petitioned for special equity, claiming that the marital home was purchased prior to the marriage.¹

During the marriage, a second mortgage was obtained on the marital home. It was the understanding of the parties that Mr. Jernigan would be responsible for the first mortgage and Mrs. Jernigan for the second mortgage.² After hearing, the trial court awarded a special equity in the marital home in the amount of $4,699 in favor of Mrs. Jernigan.

A special equity “is a vested interest which a spouse acquires because of contribution of funds, property, or services made over and above the performance of normal marital duties.” Duncan v. Duncan, 379 So.2d 949 (Fla.1980). Where, as here, both parties work and the wife’s earnings³ are used to pay for property while the husband’s earnings are expended for some other purpose, the wife’s contribution cannot be deemed unconnected with normal marital duties so as to entitle her to a special equity. Fiedler v. Fiedler, 375 So.2d 1119 (Fla. 2d DCA 1979), certiorari denied, 383 So.2d 1193 (Fla.1980).

Accordingly, we reverse the award of a special equity and remand for further proceedings so that the trial court may impose such remedies as may be necessary to equitably distribute the marital assets.

BOOTH, ZEHMER and WOLF, JJ., concur.

1 . The parties agree that the marital home was purchased subject to a mortgage by Mr. Jerni-gan prior to the marriage.

2 . Mrs. Jernigan made 36 payments of $144 each with regard to the second mortgage.

3 .All funds used to make mortgage payments were from wages earned during the marriage. There is no evidence that the expended funds came from a source unconnected with the marital relationship.