JEWEL HALKER MCGANN, APPELLANT,
v.
GERALD E. HALKER, APPELLEE
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Ex-wife sought to execute a 1980 judgment against her ex-husband on property he claimed was homestead-protected. The key issue was whether Dr. Halker had permanently abandoned the homestead before he conveyed it to himself and his new wife by the entireties in June 1985, which would have shielded it from execution. The court affirmed the trial court's finding that his pre-June 1985 moves to Alabama were temporary, not permanent abandonment.
The trial court's finding that Dr. Halker's pre-June 1985 excursions to Alabama were temporary absences consistent with a bona fide intent to return, rather than permanent abandonment, was affirmed. The homestead property retained its protected status until the June 27, 1985 conveyance, placing it beyond reach of the judgment.
[1] The determination of whether and when a permanent abandonment of a homestead has occurred is a question of fact, turning on the intent of the record owner.
[2] Temporary absences from a homestead, consistent with a bona fide intent to return, do not constitute abandonment of its homestead character.
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes that homestead abandonment is fundamentally a question of the owner's intent.
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Join FLexlaw to unlock all legal intelligenceJewel Halker McGann held a 1980 judgment against her ex-husband, Dr. Gerald E. Halker. Dr. Halker had previously owned a home in Dade County, Florida …
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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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Strawgate v. Dorothea Chase Turner, 339 So. 2d 1112 (Fla. 1976)
- Dep't OF Transp. of the State of Fla. v. Morehouse, 350 So. 2d 529 (Fla. 3d DCA 1977)
- Read v. Leitner, 80 Fla. 574 (Fla. 1920)
- City OF Jacksonville & C. W. Hendley v. Bailey, 159 Fla. 11 (Fla. 1947)
- Marsh v. Hartley, 109 So. 2d 34 (Fla. 2d DCA 1959)
- The Home Ins. Co. v. Mendelson, 367 So. 2d 1071 (Fla. 3d DCA 1979)
- Crooks v. Atl. Nat'l Bank OF Fla., 445 So. 2d 1042 (Fla. 5th DCA 1984)
- Camblin v. Janies Lester Miller, 280 So. 2d 61 (Fla. 1st DCA 1973)
- Fuqua v. Monsanto Co., 286 So. 2d 205 (Fla. 1973)
- Miller v. Camblin, 286 So. 2d 205 (Fla. 1973)