Facts: The parties own two homes. One property is owned 2/3 by the parties and 1/3 by their grandson. The second property is owned ½ by the parties and ½ by their son. The wife wants the homes to be sold and the proceeds split (partition). There are no pleadings for partition, and neither the son nor grandson is a party to the action. Additionally, the wife received a significant personal injury settlement and deposited it into a joint bank account roughly a decade prior to commencement of the action. The parties used this account throughout the marriage. The wife withdrew $75,000.00 from that account one week before filing for dissolution.
Issue 1: Can the parties be ordered to sell the homes and split the proceeds under the circumstances of this case?
Partition of property is governed by Florida Statutes Chapter 64. A tenant may file an action for partition against their co tenants or others interested in the land to be divided. Florida Statutes 64.031. A complaint for partition must allege, “a description of the lands of which partition is demanded, the names and places of residence of the owners, joint tenants, tenants in common, coparceners, or other persons interested in the lands according to the best knowledge and belief of plaintiff, the quantity held by each, and such other matters, if any, as are necessary to enable the court to adjudicate the rights and interests of the party.” Fla. Stat. 64.041.
In a dissolution proceeding, a court cannot order partition of jointly owned property if it was not specifically plead for. Britt v. Britt, 552 So. 2d 323, 324 (Fla. 1st DCA 1989). A general prayer for equitable distribution of assets cannot be considered a prayer for partition. Id. (citing Borntraeger v. Borntraeger, 521 So.2d 125 (Fla. 1st DCA 1987) review denied 531 So.2d 1352 (Fla. 1988). ) To order partition of property absent a specific pleading for the same is reversible error. Id.
Further, a partition cannot be ordered if all necessary parties are not joined to the suit. DiPrima v. DiPrima, 435 So. 2d 876, 877 (Fla. 5th DCA 1983). Indispensable parties to a suit for partition are those parties with any ownership interest in the property in question. Indispensable parties are “so essential to a suit that no final decision can be rendered without their joinder.” Sudhoff v. Fannie Mae, 942 So. 2d 425, 428 (Fla. 5th DCA 2006). In DiPrima, a couple involved in a dissolution action owned an apartment building jointly with the husband’s parents. DiPrima at 877. The husband’s parents were not joined in the action, and the court correctly reserved jurisdiction on any partition of the apartment building. Id. A final judgment involving partition could not be entered absent joinder of the parents in the proceeding. Id. Failure to join an indispensible party may be raised at trial on the merits. Moore v. Leisure Pool Serv., 412 So. 2d 392, 393 (Fla. 5th DCA 1982).
There are two reasons partition cannot be ordered in the case at hand. First, neither party specifically plead for partition of the homes. Second, the parties’ son and grandson are indispensible parties to any action for partition of the homes, and they have not been joined in this action.
Issue 2: Is the wife’s personal injury settlement marital property subject to equitable distribution?
Florida courts apply an analytical approach to personal injury settlements that occurred during a marriage to determine what portion of the proceeds is marital property. Weisfeld v. Weisfeld, 545 So. 2d 1241, 1347 (Fla. 1989). This approach holds that those portions of a personal injury settlement award attributable to lost wages, loss of earning capacity during the marriage, and past medical expenses paid from marital funds are marital property. Id. at 1346. Damages for future loss of earnings and loss of earning capacity in the future are the separate property of the injured spouse. Id. Award money allocated for noneconomic compensatory damages for pain, suffering, disability, and loss of ability to lead a normal life are also the separate property of the injured spouse. Id. at 1345. Any award for loss of consortium is the separate property of the noninjured spouse. Id. Any amount of award that is unallocated is marital property. Id.
An initial payment of a settlement to the parties jointly that is initially placed into a joint account does not automatically create marital property outside of the Weisfeld analysis described above. Walker v. Walker, 719 So. 2d 977, 981 (Fla. 5th DCA 1998). However, if the nonmarital portion of the settlement award is placed into a joint account and remains there, the situation is different. “When one spouse deposits funds into a joint account where they are comingled with other funds so as to become untraceable, a presumption is created that the spouse made a gift to the other spouse of an undivided one-half interest in the funds.” Spielberger v. Spielberger, 712 So. 2d 835, 837 (Fla. 4th DCA 1998) (quoting Williams v. Williams, 686 So. 2d 805, 808 (Fla. 4th DCA 1997)). The burden of disproving this presumption is on the party claiming that no gift was intended. Lakin v. Lakin, 901 So. 2d 186, 191 (Fla. 4th DCA 2005) (citing Amato v. Amato, 596 So. 2d 1243, 1244 (Fla. 4th DCA 1992)). Comingling occurs when the money is placed into a joint account and marital funds, or the other spouse’s nonmarital funds, are deposited into and withdrawn from that same account. Grieco v. Grieco, 917 So. 2d 1052, 1054 (Fla. 2nd DCA 2006).
Any portions of the wife’s personal injury settlement agreement that were attributed to lost wages, loss of earning capacity during the marriage, and past medical expenses paid by the parties during the marriage were marital funds at the time they were awarded. Additionally, any portion of the personal injury settlement award that was unallocated was marital property at the time it was awarded. Any other portions of the settlement award became marital when they were placed into the joint marital bank account and intermingled with marital funds. The wife has the burden of disproving the marital status of these comingled funds.
