McGANN v. HALKER

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Docket Number

No. 88-47.

Attorney(S)

Robert J. Ramer, Homestead, for appellant. Michael E. Watkins, Homestead, for appellee.

Judges

SCHWARTZ, Chief Judge.

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Smart Summary

Factual and Procedural Background

The appellant, Jewel Halker McGann, the ex-wife of appellee Dr. Gerald E. Halker, held a 1980 judgment against him. The appellant sought a declaratory judgment that property previously declared homestead—being the husband's home—lost its homestead character and thus became subject to execution on the judgment after Dr. Halker left the home to reside and practice medicine in Alabama. Dr. Halker subsequently deeded the property to himself and his current wife by the entireties on June 27, 1985, effectively placing the property beyond the reach of the appellant’s judgment as of that date. The trial court conducted a non-jury trial and ruled in favor of Dr. Halker, finding that the abandonment of the homestead had not occurred prior to June 27, 1985, as the appellant contended. The appellant appealed this ruling.

Legal Issues Presented

Whether the property that had been declared homestead lost its homestead character upon Dr. Halker's departure to Alabama.
If so, the timing of the permanent abandonment of the homestead—specifically, whether abandonment occurred before or after June 27, 1985.

Arguments of the Parties

Appellant's Arguments

The appellant argued that the property lost its homestead protection because Dr. Halker permanently abandoned the home when he moved to Alabama to reside and practice medicine.
She contended that the abandonment occurred before June 27, 1985, which would subject the property to execution on her judgment.

Appellee's Arguments

Dr. Halker claimed that any absences from the home prior to June 27, 1985, were temporary and consistent with a bona fide intent to return.
He asserted that permanent abandonment did not occur until after June 27, 1985, at which point he deeded the property to himself and his wife by the entireties, thereby protecting it from execution on the appellant’s judgment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Camblin v. Miller, 280 So.2d 61 (Fla. 1st DCA 1973), cert. denied, 286 So.2d 205 (Fla. 1973)	Establishing that property deeded by entireties is protected from execution on individual judgments.	Used to confirm that the 1985 deed to Dr. Halker and his wife placed the property beyond the appellant’s judgment as of that date.
City of Jacksonville v. Bailey, 159 Fla. 11, 30 So.2d 529 (1947)	Homestead abandonment is a question of fact centered on the intent of the record owner.	Supported the court’s characterization of abandonment as a factual issue for determination based on evidence.
Read v. Leitner, 80 Fla. 574, 86 So. 425 (1920)	Temporary absences do not constitute abandonment if there is bona fide intent to return.	Reinforced the conclusion that pre-1985 absences were temporary and did not amount to abandonment.
Marsh v. Hartley, 109 So.2d 34 (Fla. 2d DCA 1959)	Similar principle regarding intent and temporary absence in homestead abandonment context.	Supported the factual determination regarding intent to return.
Strawgate v. Turner, 339 So.2d 1112 (Fla. 1976)	Standard of review requiring affirmance if record evidence supports trial court’s findings.	Guided appellate deference to trial court’s factual findings on abandonment.
Crooks v. Atlantic Nat'l Bank, 445 So.2d 1042 (Fla. 5th DCA 1984)	Affirmance of factual findings supported by record evidence.	Reinforced appellate standard deferring to trial court on factual matters.
Home Ins. Co. v. Mendelson, 367 So.2d 1071 (Fla. 3d DCA 1979)	Similar principle of deference to trial court’s factual conclusions.	Supported affirmance of trial court’s ruling on intent and abandonment.
Department of Transp. v. Morehouse, 350 So.2d 529 (Fla. 3d DCA 1977), cert. denied, 358 So.2d 129 (Fla. 1978)	Standard for appellate review of factual findings.	Applied to uphold trial court’s factual determination.

Court's Reasoning and Analysis

The court identified that the key legal question was whether and when the appellant’s former homestead lost its protected status through permanent abandonment, focusing on the owner's intent. The court recognized that abandonment is a factual determination made by the trial court based on the totality of evidence. Here, the trial court found that Dr. Halker's absences from the home prior to June 27, 1985, were temporary and accompanied by a bona fide intent to return, thus not constituting abandonment. The appellate court found ample record evidence supporting this conclusion and, consistent with established precedent, deferred to the trial court’s factual findings. Consequently, the court affirmed the ruling that the homestead character of the property remained intact until after June 27, 1985, when the property was deeded by entireties, thereby placing it beyond the appellant’s judgment.

Holding and Implications

Affirmed.

The court upheld the trial court’s determination that the property did not lose its homestead protection prior to June 27, 1985, because Dr. Halker's absences were temporary and not permanent abandonment. The direct effect is that the property remained exempt from execution on the appellant’s judgment until it was deeded by entireties after that date. The opinion sets no new precedent beyond applying established principles of homestead abandonment and appellate review of factual findings.

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JEWEL HALKER McGANN, APPELLANT, v. GERALD E. HALKER, APPELLEE.

SCHWARTZ, Chief Judge.

The appellant, who is the appellee Dr. Halker's ex-wife, held a 1980 judgment against him. She claimed the right to a declaratory judgment below that property which had been the husband's home and had accordingly been declared homestead, lost its homestead character and thus became subject to execution upon the judgment after he left the home to reside and practice in Alabama. Dr. Halker deeded the property to himself and his present wife by the entireties on June 27, 1985, thereby validly placing the property beyond the reach of the judgment against him as of that time. See Camblin v. Miller, 280 So.2d 61 (Fla. 1st DCA 1973), cert. denied, 286 So.2d 205 (Fla. 1973). Since he had undoubtedly, permanently moved to Alabama by the time of trial, the issue below was whether the "abandonment" had occurred before June 27, 1985, as the ex-wife contended, or after that time, as Dr. Halker claimed. After a non-jury trial, the lower court ruled for Dr. Halker and Mrs. McGann appealed.

The issues of whether and when the permanent abandonment of a home, which is required to strip the property of its homestead character, has occurred are essentially matters of the intent of the record owner of the property. 29 Fla.Jur.2d Homestead § 68 (1981). As such, they are almost invariably — and we find that this is true here — matters of fact to be determined on the basis of all the evidence and the inferences to be drawn from that evidence in the particular case. City of Jacksonville v. Bailey, 159 Fla. 11, 30 So.2d 529 (1947); 29 Fla.Jur.2d Homestead § 67. We find ample evidence in the present record to support the trial judge's necessary conclusion that Dr. Halker's pre-June 1985 excursions to Alabama, leaving his family behind in Dade County, were not permanent but, mere temporary absences "consistent with [a] bona fide intent to return," 29 Fla.Jur. 2d Homestead § 69, at 327, and thus did not amount to an abandonment. See Read v. Leitner, 80 Fla. 574, 86 So. 425 (1920); Marsh v. Hartley, 109 So.2d 34 (Fla. 2d DCA 1959). While we may or may not have reached the same conclusion ourselves, the existence of record evidence to support that of the trial judge requires its affirmance. See Strawgate v. Turner, 339 So.2d 1112 (Fla. 1976); Crooks v. Atlantic Nat'l Bank, 445 So.2d 1042 (Fla. 5th DCA 1984); Home Ins. Co. v. Mendelson, 367 So.2d 1071 (Fla. 3d DCA 1979); Department of Transp. v. Morehouse, 350 So.2d 529 (Fla. 3d DCA 1977), cert. denied, 358 So.2d 129 (Fla. 1978).

Affirmed.