5D07-308 Alvarez v. Plana

State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-308

Case Date: 01/21/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2008

VINCE ALVAREZ, Appellant, v. ANA CRISTINA PLANA, F/K/A ANA C. PLANA-ALVAREZ, Appellee. ________________________________/ Opinion filed January 25, 2008 Appeal from the Circuit Court for Seminole County, Alan A. Dickey, Judge. Theodore R. Doran and Audrie M. Harris of Doran, Wolfe, Ansay & Kundid, Daytona Beach, for Appellant. Shannon L. Akins of Law Offices of Shannon L. Akins, P.A., Orlando, for Appellee. Case No. 5D07-308

PER CURIAM. In this divorce proceeding, Appellant raises several points on appeal, only one of which warrants discussion: whether the lower court erred in its determination that a Smith Barney account in joint names was a marital asset. Concluding that the lower court erred, we reverse and remand for further proceedings on this issue. In all other respects, we affirm the judgment.

Indisputably, the Smith Barney account only contained assets that were acquired by Appellant prior to the marriage. They were never commingled with marital assets. Although Appella nt placed Appellee's name on the account shortly after the marriage commenced, Appellant managed the account exclusively throughout the seven-year marriage. In fact, Appellee admitted that she had not been aware that her name was on the account until after she received discovery in the dissolution proceedings. The lower court determined that the account was marital, concluding that Appellant "failed to meet his burden of proving . . . that the Smith Barney brokerage [account] should not be treated as marital." This conclusion was erroneous. Once Appellant demonstrated that the assets originated as his separate, non-marital property, and never became commingled or otherwise untraceable, the burden was on Appellee to prove that Appellant intended to make a gift to her of one-half of them. Archer v. Archer, 712 So. 2d 1198, 1200 (Fla. 5th DCA 1998). Because Appellee offered no evidence to establish that a gift was intended and was not even aware that the funds were in her name until after the proceedings were commenced, the assets remained non-marital. Accord Crouch v. Crouch, 898 So. 2d 177 (Fla. 5th DCA 2005). AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

THOMPSON, TORPY and LAWSON, JJ., concur.

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