On appeal from The Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County; ">

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Date: 02-21-2022

Case Style:


Case Number: 21-0373

Judge: Mark W. Klingensmith



On appeal from The Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County;

Plaintiff's Attorney:

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Defendant's Attorney:
Glenn J. Sneider of Sneider Law


West Palm Beach, FL - Divorce lawyer represented appellant with appeal2ING the trial court’s final judgment of dissolution of marriage.

Former Husband and Former Wife were married in 2007. In 2018,
when Former Wife filed her Second Amended Petition for Dissolution of
Marriage, she added Former Husband’s mother as a party to the
proceedings. The Second Amended Petition included counts for partition
of real property, resulting trust, and constructive trust.
The trial court held two evidentiary hearings where it heard testimony
from various witnesses. Former Wife testified that Former Husband
bought the subject property—titled solely in his name—after their
engagement but before the wedding. Former Husband’s uncontradicted
testimony was that he used nonmarital funds to purchase the property.
However, whether the newlyweds ever intended to establish this property
as their marital home was sharply disputed.
Former Husband testified that he transferred the property to his father
with no intention of creating a marital home. Instead, he planned to build
a home on the land for his parents. He said that he transferred title to his
father as a sign of good faith for helping with his general affairs and not
as a way to secure funding for construction.
Former Wife told a different story, testifying that the couple did not have
the ability to get a construction loan before their marriage, and Former
Husband transferred the title to the property to his father four months
before the nuptials to enable them to obtain the necessary loan to build
the house.
The testimony at the hearings also significantly differed regarding the
extent of each party’s respective involvement during the construction
process. Former Wife testified that construction commenced as the couple
were on their honeymoon and was completed later that year. She claimed
that she selected furnishings, made interior design choices, and was
actively involved with the contractor, who was a friend, throughout the
construction process until the home was finished. Former Husband
testified that Former Wife was not involved in planning the house and that
the contractor had no relation to either party whatsoever.
The contractor who built the home testified at the hearings and
substantially corroborated Former Wife’s testimony regarding the home’s
origins. Contrary to the Former Husband’s testimony, the contractor
testified she discounted the contracting fee as a wedding gift to Former
Wife. The contractor also asserted that Former Husband’s father was
never involved in any decision-making when building the home and that
she never discussed construction details with him. The contractor also
confirmed that Former Wife made most of the decisions regarding
construction details and design. Additionally, the contractor was never
told the house was being constructed for Former Husband’s parents, and
she explained that the contracting fee would not have been discounted as
a wedding gift if that were the case.
Despite Former Husband’s claim that the home was built for his
parents, the evidence was undisputed that from the end of construction in
2007 until the death of Former Husband’s father in 2017, neither of his
parents ever lived in the home. Instead, Former Husband and Former Wife
resided in the home and made monthly payments that Former Wife
described as mortgage payments. Former Husband countered these were
actually rent payments made pursuant to an oral lease with his parents
since they owned the house. Former Husband admitted, however, that
these payments were paid from marital funds directly to the lender and
not to his parents. Further, the undisputed evidence at the hearings
showed that throughout their marriage the couple claimed a mortgage
interest deduction on their joint tax returns during their occupancy of the
The trial court found Former Wife’s account of how the marital home
was planned and constructed to be the more credible. The trial court
found that the couple obtained financing from a lender to build the home
by transferring title to the father who acted as the “straw man” for the loan
and executed all the loan documents. The trial court noted that additional
evidence of this intent was revealed after the father died when it was
discovered that the contents of the father’s unprobated will, which Former
Husband helped arrange, devised everything to Former Husband’s mother
with the sole exception of the subject property which was bequeathed to
Former Husband.
The trial court deemed the Former Husband’s testimony not credible
regarding the home’s ownership and found by clear and convincing
evidence that his father held bare legal title to the real property only to
assist the couple in obtaining a mortgage. The trial court also found that
the father never intended to keep an ownership interest in the property.
As a result, the court imposed a constructive trust on the home as part of
its written final order of dissolution. Based on the above findings, Former
Wife was awarded a 50% interest in the property and a lis pendens placed
on the property pending partition and sale. This appeal followed.
“To impose a constructive trust, there must be (1) a promise, express
or implied, (2) transfer of the property and reliance thereon, (3) a
confidential relationship and (4) unjust enrichment.” Provence v. Palm
Beach Taverns, Inc., 676 So. 2d 1022, 1025 (Fla. 4th DCA 1996).
Moreover, there must be “clear and convincing evidence” on the record
establishing the factors needed to prove a constructive trust. Saporta v.
Saporta, 766 So. 2d 379, 381 (Fla. 3d DCA 2000). A constructive trust
can “prevent an unjust enrichment of one person at the expense of another
as the result of fraud, undue influence, abuse of confidence or mistake in
the transaction that originates the problem.” Wadlington v. Edwards, 92
So. 2d 629, 632 (Fla. 1957). A court should impose a constructive trust
where one party acquired property by fraud or “when it is ‘against equity’
that someone who acquired property without fraud should continue to
retain possession.” Silva v. de la Noval, 307 So. 3d 131, 134 (Fla. 3d DCA
Florida courts have imposed constructive trusts in divorce proceedings
to create an equitable outcome. See Zanakis v. Zanakis, 629 So. 2d 181,
182 (Fla. 4th DCA 1993); see also Saporta, 766 So. 2d at 381. In Saporta,
the Third District remanded and instructed the trial court to impose a
constructive trust on the marital home because the imposition of the trust
was “necessary to do justice and ‘prevent the unjust enrichment of one
person at the expense of another.’” Id. (quoting Geiser v. Geiser, 693 So.
2d 59, 60 (Fla. 5th DCA 1997)).
Here, the trial court did not abuse its discretion in imposing a
constructive trust on the marital home. See Saporta, 766 So. 2d at 381.
In its well-crafted final order, the trial court detailed the clear and
convincing evidence that proved all four factors and the necessity of a
constructive trust. See Provence, 676 So. 2d at 1025.
First, the testimony of both Former Husband and Former Wife showed
the existence of the implied promise that the house was intended to be
their marital home where they planned on raising their children during
the marriage. See Saporta, 766 So. 2d at 381.
Second, while Former Wife did not contribute funds to buy the property,
like in Saporta, clear and convincing evidence showed that Former Wife
assisted with the design and construction of the home and made mortgage
payments with Former Husband during the marriage. Additionally, the
couple included the home on their marital tax returns. See id.
Third, a confidential relationship existed and was supported by the trial
court’s finding that the Former Husband and Former Wife were married
with two children, lived in the house that they constructed together, and
jointly paid mortgage payments. See id.
Fourth, the record supported the court’s conclusion that failure to
impose a constructive trust on the marital home would result in the unjust
enrichment of Former Husband. See id.; Geiser, 693 So. 2d at 60.
Although we disagree with Former Husband that imposing the
constructive trust was improper, we do agree that the trial court erred by
failing to account for Former Husband’s contribution of nonmarital funds
towards the initial purchase of the property before the marriage. Because
it was undisputed that Former Husband bought this property using his
personal assets before the marriage, the trial court erred in awarding an
equal split of the home’s sale proceeds without taking into consideration
the value of the couple’s respective nonmarital contributions to the

Outcome: We therefore reverse that portion of the final judgment and remand to
the trial court for further proceedings consistent with this opinion. We
affirm on all other issues without comment.

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