208 B.R. 85 (Bkrtcy.S.D.Fla. 1997), 96-35148-BKC, In re Colwell

• Citation: 208 B.R. 85
• Party Name: In Re William Frederick COLWELL and Ruby Colwell, Debtors.
• Case Date: April 25, 1997
• Court: United States Bankruptcy Courts, Eleventh Circuit

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208 B.R. 85 (Bkrtcy.S.D.Fla. 1997)

In Re William Frederick COLWELL and Ruby Colwell, Debtors.

Bankruptcy No. 96-35148-BKC-SHF.

United States Bankruptcy Court S.D. Florida.

April 25, 1997

John P. Tynan, Jupiter, FL., for debtors.

Soneet R. Kapila, Trustee, Ft. Lauderdale, FL.

Michael R. Bakst, West Palm Beach, FL., for Royal International Trading Corp.

ORDER SUSTAINING OBJECTION TO EXEMPTIONS

STEVEN H. FRIEDMAN, Bankruptcy Judge.

This matter came before the Court March 6, 1997, for hearing on the objection of creditor, Royal International Trading Corporation ("Royal"), to the debtors' claimed exemption in two homesteads. At the time of the filing of the bankruptcy petition, the Debtors, William and Ruby Colwell, were married but also separated and living apart for a period of approximately 3 1/2 years. When they filed their joint petition, they each claimed a homestead exemption in the property in which they were living. Having considered the objection, the response thereto, the argument of counsel and for the reasons set forth below, the Court sustains the objection to exemption.

On December 12, 1996, the Debtors filed a joint bankruptcy petition. On schedule C of their bankruptcy schedules the Debtors claimed two separate residences as exempt pursuant to Article X, Section 4 of the Florida Constitution. There are no disputed facts. The Debtors, at the time of the filing of the bankruptcy petition, had been separated and living on distinct, noncontiguous parcels of property in different parts of Palm Beach County, Florida for the preceding 3 1/2 years. Royal objects to the dual claim of homesteads, raising the issue of whether, under Florida law, married individuals living apart are each entitled to claim a homestead as exempt.

Article X, Section 4 of the Florida Constitution provides, in pertinent part:

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a

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lien thereon, ... the following property owned by a natural person:

(1) a homestead. ... .

Royal contends that the Debtors are entitled to only one homestead. The Debtors contend that the Florida Constitution allows for each natural person to have a homestead. Thus, each of the Debtors asserts entitlement to his or her own homestead. There are no published Florida cases addressing this point. The cases...