#### Alice L. HOKE, Appellant, v. Carl E. HOKE, Hoke Properties, Inc., a Florida corporation, and Ocean Breeze Park, Inc., a Florida corporation, Appellees.

No. 245.

District Court of Appeal of Florida. Fourth District.

Aug. 21, 1967.

Rehearing Denied Sept. 26, 1967.

Elton H. Schwarz, Stuart, for appellant.

Errol S. Willes, of Willes, Bittan & Griffin, Fort Pierce, for appellees.

WHITE, JOSEPH S., Associate Judge.

The wife appeals from a final decree of divorce wherein the trial court granted .the *119divorce to the defendant-husband upon his counterclaim, awarded the wife permanent alimony and, in addition, made provision for payment by the husband of the wife’s future medical expenses.

The wife now complains that the trial court should not have granted the divorce to the husband, did not give her enough alimony and should have found the wife entitled to “special equities” in the properties owned by the husband.

The trial in the lower court was prolonged and drawn out. The record brought here shows approximately six hundred pages of testimony. Many conflicts upon important issues are found in the testimony. The rule is' that such conflicts are to be reconciled by the trial judge and not in this court. As is frequently the case in such matters neither party was free from fault. Serious charges were made, one against the other. By granting the divorce to the husband the trial judge found the husband less at fault than the wife, and we are unable to say that the record does not contain substantial evidence supporting such a finding.

Neither are we able to say that the able trier of the facts abused his discretion upon the record presented to him in arriving at the sum to be allowed the wife as permanent alimony and for his manner in providing, in addition, for payment of future medical expenses of the wife.

We do, however, find ouselves in disagreement with the trial court’s failure to restore to the wife a proper part of the stock which she was entitled to receive when property in which she had a vested interest was transferred to the corporation.

The record shows that the husband and certain members of his family owned valuable lands upon which they operated a mobile home park. The title to a one-third undivided interest in a part of the land stood in the name of the husband alone and to another part in the names of the husband and wife as an estate by the entirety. During the years 1960 and 1962, when the sea of matrimony was blessed with calmer waters, the lands were conveyed for the sake of convenience to the corporations. The wife joined in the deeds but received nothing in the transaction. The husband, as consideration for the transfer, received thirty-three shares of stock in each corporation. The final decree of divorce leaves the husband with all of the corporate stock, whereas the wife has only the award of alimony, which will terminate in the event she survives her husband, since alimony cannot be made a charge upon an ex-husband’s estate. See Aldrich v. Aldrich, Fla.1964, 163 So.2d 276.

Ordinarily, upon divorce, the wife becomes owner of an undivided one-half interest, as tenant in common with the husband, in lands formerly owned by them as an estate by the entirety. Thus in this case if the transfer had not taken place the wife, upon the divorce, would have remained owner of an undivided one-half interest in the lands which she and her husband owned jointly. The position of the wife was materially changed by the transfer. The corporation became sole owner of the land, and her husband became sole owner of the corporate stock given in exchange for the land. He received the consideration. She received nothing notwithstanding that the wife’s interest in the land was equal to that of the husband. According to the record the wife was entitled to a part of the stock proportionate to her former undivided one-half interest in the jointly owned land. Equity treats that as done which should have been done. Accordingly, the husband now holds that part of the stock in trust for her.

It is important to remember in this connection that the transfer was made for convenience and to accommodate the expanding business operation in which the husband was then a co-partner so that it could be carried on more advantageously.

*120The trial judge was not given a basis for arriving at an accurate appraisal of an appropriate share of the stock to replace what would have been the wife’s share of the land. Nor does the record now before this court reveal data upon which the computation can be made here. It is the duty of this court under the provisions of Statute 59.34 “to see that substantial justice and right shall prevail as contemplated by Section 4 of the Declaration of Rights' of the Constitution of Florida.” Briggs v. Smith, 1938, 134 Fla. 569, 574, 184 So. 106, 108. See also, 2 Fla.Jur., Appeals, § 379. Accordingly, we remand the cause with directions to take further testimony on the point.

We affirm the lower court in all respects except as noted in our disagreement explained above. That part of the final decree allowing the wife no interest in the corporate stock is reversed with directions to the lower court to proceed as it may be advised to fix an award to the wife of a fair and equitable share of the corporate stock so received by the husband. Such share is to be ascertained and fixed by the value reflected in the corporate stock at the time of making the award of an undivided one-half interest in the lands formerly owned by the parties as an estate by the entirety.

We do *not mean to exclude from*consideration by the trial judge the right to require the husband to pay the wife for her interest in such stock, rather than require transfer thereof in kind. See Turk v. Turk, Fla.App.1960, 118 So.2d 67.

This may warrant a review of the wife’s prayer for permanent alimony, costs and attorney fees in the light of her changed circumstance's. Accordingly, the lower court is authorized to receive further testimony and review her prayer in this regard and to make such change or modification thereof, if any, as shall be appropriate.

Affirmed, in part, and reversed, in part, with directions.

CROSS, J., concurs.

WALDEN, C. J., dissents, with opinion.

WALDEN, Chief Judge

(dissenting).

I would affirm the final decree without exception because I can find no basis in fact or law for overruling the final decree and directing the award of the husband’s corporate stock to the wife.

While not stated by the majority, by the process of elimination, the only possible theory whereby such award might be justified would be on the basis of a constructive trust.

What is a constructive trust? It arises by operation of law against one who, by actual or constructive fraud, by duress or abuse of confidence, or by any form of unconscionable conduct, artifice, concealment, or questionable means, or who in any way against equity and good conscience has acquired the legal right to property he ought not, under equitable principles, hold and enjoy. 33 Fla.Jur., Trusts, § 61. See also Wadlington v. Edwards, Fla.1957, 92 So.2d 629.

A constructive trust can only be established by full, clear, strong and unequivocal evidence. It must be shown to exist beyond all reasonable doubt. Especially is the need for clear and convincing proof present when a long period of time has elapsed since the happening of the transaction relied on. 33 Fla.Jur., Trusts, § 124.

And where are such proofs in the case before us ? The chancellor answered in the final decree by saying, “Plaintiff’s claim of special equities in the defendant husband’s estate falls for the reason that the evidence fails to show such special equities.”

Needless to say, the chancellor’s decision is presumed to be correct and deserves *121great weight in that he had the witnesses before him and was in a superior position to accept or reject, weigh, sift, and reconcile the evidence.

The only fact upon which such a trust could conceivably rest was that the wife in 1962 joined in a deed which conveyed some land to the family corporation.

What was the background for this event? Was it a step in a sinister plot? Did it foretell or demonstrate beyond all reasonable doubt that the husband was embarked upon a course of fraud, duress or unconscionable conduct which would result in a constructive trust as a matter of law?

In 1938 the husband’s father borrowed money and established a trailer park. Thanks to the father’s ingenuity and industry the park business became a success. However, the business structure and practices were extremely loose and nebulous.

The father and his two sons, including the defendant husband, worked in the park but neither the sons nor their wives, including the plaintiff wife, ever invested any money in the business. The wife did some nominal work about the park for which she received a salary of $100.00 per week, and there is no question but that this was abundant compensation for her efforts.

The operation drifted into a partnership arrangement. In 1957 a deed of trust was executed which was, in essence, a partnership agreement. It was agreed that the father contributed all the real and personal property while the sons agreed to contribute their full time and services to the partnership. It mentioned a parole partnership agreement which was in effect before the sons went off to war. It declared that the property that the partnership and participants had accumulated would be held in trust for the partnership. It recited that the parties understood that they took title of record to the property for the full and complete benefit of the partnership.

In 1962 the corporate structure was formed. The sons and their wives signed deeds for property which had been held in their names for the benefit of the partnership and thereby conveyed same to the .family corporation. Its stock was issued to the father and to the two sons. None of the wives received any stock.

For as much as the record shows the wife never questioned this transaction until the institution of divorce proceedings.

Can it be said under these circumstanceg that the chancellor erred in not awarding the wife a portion of the stock? I think not. There is no showing that the wife ever had any interest whatever in the family business, regardless of its form. It is not shown that she furnished the consideration or any part of it when the parcel was originally placed in their joint names. Certainly the transfer of 33 shares of stock in each of the family corporations was not shown to be the consideration for the conveyance of the parcel of land to the corporation. The stock was issued because of the husband’s pre-existing interest in the partnership business and because of the father-son relationship.

While we need not explore all of the possibilities available to the chancellor, he could very well have found the trust not proven under this presentment and he did so announce. He could have believed that the husband and wife held title in trust for the partnership as suggested in the 1957 deed of trust. He could have deemed it a gift.

We are indeed upon the threshold of a new day in domestic relations litigation if automatically and as a matter of law upon divorce each husband will be required to account for and pay to the wife from his estate one-half the value of the lands, measured in a sum equivalent to its present day value, which were the subject of a joint conveyance at any time during the course of marriage.

In sum, then, I repeat that I find no basis for disturbing the final decree.