Della Ratta v. Della Ratta, 2006 WL 1235760, 31 Fla. L. Weekly D1325 (Fla. 4th DCA May 10, 2006) Dating back to 1884, Florida’s “family member” evidentiary presumption was at the heart of this recent piece of litigation revolving around a son’s lawsuit against his mother and step-father for ownership of a condo’ he lived in and fixed up based on an understanding that the property would be his. Intra-family disputes over vaguely defined economic arrangements are of course nothing new to the probate-litigation arena. What makes this case interesting is how a public-policy decision was made by the Florida Supreme Court in 1884 to “presume” the non-existence of economic obligations between family members living in the same home. Here’s how the Fourth DCA articulated the rule:
The supreme court articulated the “family member presumption” in Mills v. Joiner, 20 Fla. 479, 1884 WL 2067 (1884). There, a daughter sued her father for payment for housekeeping services she performed for him and her mother in their home for almost ten years. During this time, she lived in the home with her parents. The daughter alleged that her father agreed to pay for her services. Seven years later, the father reneged on the deal. At trial, the court charged the jury that the daughter could not recover unless she proved “‘a special contract or express promise that she was to be paid for her services.'” Id. at 492; Mills, 20 Fla. 479, 1884 WL 2067, at *4 (emphasis in original). The jury found for the father. It is a presumption of law that the father is not bound to pay a child, though of full age, for services while living with him at home and as one of the family; but this presumption may be overcome by proof of a special contract,[FN1] express promise, or an implied promise; and such implied promise or understanding may be inferred from the facts and circumstances shown in evidence. Id. at 492-93; Mills, 1884 WL 2067, at *4 (boldface supplied); see also Brown, 47 So.2d at 759, 763 (supreme court followed Mills in affirming the ruling that a daughter had not proved an express or implied contract that overcame the family member presumption, even though the daughter had rendered services to her mother for many years). The “family member presumption” described in Mills applies to personal services that a child performs for a parent while living “at home with [the parent] and as one of the family.” Id. at 492; Mills, 1884 WL 2067 at *4. [FN1.] In WPB, Ltd. v. Supran, 720 So.2d 1091, 1092 (Fla. 4th DCA 1998), we explained that a “special contract” is one with peculiar provisions or stipulations not found in the ordinary contract relating to the same subject matter. These provisions are such as, if omitted from the ordinary contract, the law will never supply. (citing 17 C.J.S. Contracts § 10 (1963)).”A special contract is always an express contract, ‘one whose provisions are expressed and not dependent on implication.’ ” Id. (citing Fitzpatrick v. Vermont State Treasurer, 144 Vt. 204, 475 A.2d 1074, 1077 (1984)).
The Sponsor’s Note to 2005->Ch0090->Section%20302#0090.302″>F.S. § 90.302 does a good job of putting this case in context by explaining the significance of evidentiary presumptions in general:
All presumptions that are not conclusive are rebuttable presumptions. For several decades, courts and legal scholars have wrangled over the purpose and function of these presumptions. The view espoused by Professor Thayer (Thayer, Preliminary Treatise on Evidence 313-352 (1898) ) and Wigmore (9 Wigmore, Evidence §§ 2485-2493 (3rd ed. 1940) ), accepted by most courts (see Morgan, Presumptions, 10 Rutgers L.Rev. 512, 516 (1956) ), and adopted by the American Law Institute’s Model Code of Evidence, is that a presumption is a preliminary assumption of fact that disappears from the case upon the introduction of evidence sufficient to sustain a finding of the nonexistence of the presumed fact. Professors Morgan and McCormick argue that a presumption should shift the burden of proof to the adverse party. Morgan, Some Problems of Proof 81 (1956); McCormick, Evidence § 317 (1945). They believe that presumptions are created for reasons of policy and argue that, if the policy underlying a presumption is of sufficient weight to require a finding of the presumed fact when there is no contrary evidence, it should be of sufficient weight to require a finding when the mind of the trier of fact is in equilibrium or if he does not believe the contrary evidence.