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Armao v. McKenney

Florida Court of Appeals, Fourth District

May 3, 2017

ROBERT McKENNEY, as successor trustee of the Russell R. Turnbull Trust, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Thomas M. Lynch IV, Judge; L.T. Case No. CACE 13-025034 (5).

          Bruce S. Rogow and Tara A. Campion of Bruce S. Rogow, P.A., Fort Lauderdale, and Stephen J. Simmons of Mombach, Boyle, Hardin & Simmons, P.A., Fort Lauderdale, for appellant.

          Kenneth E. Keechl of Kenneth E. Keechl, P.A., Wilton Manors, for appellee.

          Levine, J.

         This case presents several issues for our consideration. First, whether the evidence supported an oral cohabitation agreement and, if so, whether the evidence supported the damage award. Second, whether the appellant was entitled to partition credits for expenses paid using funds belonging to both parties. Third, whether alleged inconsistencies among the trial court's pronouncements requires reversal where the trial court confirmed, after a post-judgment hearing, that the final judgment reflected its intent.

         We find that the evidence supported an oral cohabitation agreement, but that the damage award should have been for a lesser amount, as conceded by the appellee. We further find that the trial court did not abuse its discretion in declining to award partition credits. Finally, we find that any inconsistencies in the trial court's pronouncements were resolved when the court re-affirmed the final judgment.

         In November 2013, Anthony Armao filed a complaint against Russell Turnbull for partition of real property they owned as joint tenants with rights of survivorship. In addition to half of the sale proceeds, Armao sought credits for expenses paid on the property. Turnbull denied that Armao was entitled to any credits and counterclaimed for breach of an oral cohabitation and support agreement.

         In a joint pre-trial stipulation, the parties agreed, inter alia, that their social security checks were deposited into a joint checking account. Numerous expenses related to the home were paid from their joint checking account. They sold property together, made loans together, and filed a joint suit to recover on a loan. Checks payable in both their names were deposited into Armao's trust account, including proceeds from the sale of joint property.

         At trial, Turnbull testified that within a couple of years of meeting Armao, they entered into an oral cohabitation agreement. They discussed how they would work together, live together, provide for each other, and take care of each other. They agreed to move in together, to be a couple, and take care of each other financially and emotionally, "just like a married couple." They agreed that all their income, investments, assets, and inheritances would be combined and used to pay their current and future expenses.

         Additionally, Turnbull presented evidence, and the trial court determined, that the parties' held themselves out as a couple during their forty-six year relationship. They had a blessing ceremony and anniversary parties. They lived together in Rhode Island and then retired together in Florida. They lived in several different homes until they purchased the home that is the subject of the partition action. They created identical trusts and wills leaving everything to each other.

         Armao made the decisions in their relationship, including their financial decisions, and consequently handled all the money. The parties worked together at Armao's family's business. Over the years, Turnbull earned approximately $500, 000. He turned all his paychecks over to Armao.

         Prior to entering into a relationship with Armao, Turnbull owned a house. When that property was sold, Turnbull turned the proceeds over to Armao. Before purchasing the home at issue in this case, the parties owned a condominium together. When they sold the condominium for $289, 000, the proceeds from the sale went into Armao's trust account. The parties purchased a yacht together and, when they sold the yacht for a net profit of $135, 000, the sale proceeds went into Armao's account. The parties also made a number of joint loans together. When Turnbull's mother died, Turnbull gave his inheritance money-approximately $460, 000-to Armao.

         The balances in five Wells Fargo accounts in Armao's name totaled $1, 048, 448. Turnbull sought half of this amount-$509, 224-as representing half of ...

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