Berlinger v. Casselberry, 2D12–6470.

Decision Date12 March 2014
Docket NumberNo. 2D12–6470.,2D12–6470.
Citation133 So.3d 961
PartiesBruce D. BERLINGER, Appellant, v. Roberta Sue CASSELBERRY, Appellee.
CourtFlorida District Court of Appeals

OPINION TEXT STARTS HERE

Michael R. Presley, Robert M. Presley, and Steven M. Presley of Presley Law and Associates, P.A., Wellington, for Appellant.

Michael A. Hymowitz of Braverman and Hymowitz, Fort Lauderdale, for Appellee.

SLEET, Judge.

Bruce Berlinger, the former husband, appeals an order of the trial court granting Roberta Casselberry's, the former wife, motion for contempt and motion for a continuing writ of garnishment over any disbursements made from the Berlinger Discretionary Trusts 1 to or for the benefit of Berlinger (the garnishment order). Berlinger argues that the order violates the provisions of sections 736.0503(3) and 736.0504, Florida Statutes (2011). We affirm the portion of the order granting contempt without further discussion. Because the court had the ability to enter an order granting writs of garnishment against the discretionary trusts, we affirm.

I. BACKGROUND

“Oh what a tangled web we weave when we first practice to deceive.” 2 Although financially able to pay, Berlinger and his attorneys went to extraordinary lengths to avoid his support obligation to Casselberry.

After thirty years of marriage, Berlinger and Casselberry divorced in 2007. Pursuant to a marital settlement agreement ratified by the court and incorporated into the final judgment of dissolution, Berlinger agreed to pay Casselberry $16,000 a month in permanent alimony. Thereafter, Berlinger and his current wife enjoyed a substantial lifestyle sustained through payments made to Berlinger directly or on his behalf by the Berlinger Discretionary Trusts. The trusts paid for all of his living expenses including, but not limited to, mortgage payments, property taxes, insurance, utilities, food, groceries, and miscellaneous living expenses. Although he continued to live on the substantial proceeds of the Berlinger Discretionary Trusts, Berlinger voluntarily stopped paying alimony in May 2011.

When Berlinger stopped paying alimony, Casselberry filed a motion to enforce and for contempt and set it for hearing in August 2011. Just prior to the hearing, the parties reached a settlement wherein Berlinger agreed to satisfy his alimony arrears by liquidating an IRA account. An agreed order was entered August 25, 2011. After the IRA liquidation, $32,625.54 plus interest remained owing on the arrears judgment. The court issued writs of garnishment to SunTrust as trustee to the Berlinger Discretionary Trusts.

Unbeknownst to Casselberry, Berlinger executed deeds on July 21, 2011, conveying his two-third interest in his real property, including his residence (the Banyon Property), into a never-before-disclosed trust, the Schweiker–Berlinger Irrevocable Life Insurance Trust. Michael Presley, Berlinger's attorney, enlisted the assistance of his longtime friend, attorney Richard Inglis,3 to prepare the deeds and set up the new trust.

Berlinger reported his two-third interest in the Banyon Property to be worth $1,386,000; the deed reflected that he was the sole holder of the beneficial interest in the new trust. Berlinger never amended or supplemented his financial disclosures to reveal the real property transfer or the existence of the Schweiker–Berlinger Irrevocable Life Insurance Trust. To the contrary, Berlinger gave a deposition eight days after he executed the deeds and set up the new trust and swore that there were no life insurance trusts and that he was no longer the trustee for any of the family trusts. However, Casselberry's discovery efforts revealed this new trust, that attorney Presley was named as trustee, and that Berlinger was trustee until October 11, 2011.

Around September 2011, Berlinger was provided a Visa card from SunTrust Bank (the then corporate co-trustee of the Berlinger Discretionary Trusts) to use for paying expenses not directly paid by the trusts. The trusts paid the Visa credit card bills, including expenses for travel, entertainment, clothing, medical expenses, grooming, gifts, and Berlinger's current wife's credit card bills.

In January 2012, Casselberry filed a second motion for civil contempt and enforcement against Berlinger. On January 17, 2012, the trial court issued writs of garnishment against SunTrust. Neither Berlinger nor SunTrust objected to these writs.

On April 26, 2012, Casselberry filed a motion for continuing writ of garnishment against SunTrust seeking to attach the present and future distributions made to or for the benefit of Berlinger from any trust. Casselberry alleged that traditional methods of enforcing alimony were insufficient. Attorney Presley filed a response in opposition to garnishment on behalf of SunTrust. The trial court set a hearing on that motion for November 6, 2012.

While the garnishment and family law matters were proceeding, the probate court removed SunTrust and substituted attorney Inglis as the new corporate trustee. SunTrust transferred all of the Berlinger Discretionary Trusts' funds and assets to Inglis's designated custodian, Rochdale, a securities firm. Thereafter, attorney Presley filed a motion on behalf of SunTrust Bank and Inglis seeking to substitute Inglis for SunTrust as a party to the ongoing family law case.

On November 5, 2012, one day before the hearing on Casselberry's motion for continuing writs of garnishment, Inglis withdrew his motion for substitution and filed an action seeking a declaration that the family trusts at issue were discretionary trusts.

During the November 6, 2012, hearing, Inglis testified that for the past year, the trustees, including Inglis, had not made any payments directly to Berlinger. Instead, the trustees made payments on behalf of Berlinger directly to his creditors and utilities. He asserted that the trusts were discretionary and opined that the applicable trust statute, section 736.0504, prohibited any creditor, including Casselberry, from attaching any distributions paid on behalf or for the benefit of Berlinger.

Additional evidence adduced at the hearing revealed that Berlinger and his current wife continued to live on the Banyon Property and that the mortgage loan for the property remained in Berlinger's name. Neither Berlinger nor his wife were employed and neither of them intended to look for work. All of their expenses were paid by the trusts. To avoid making distributions directly to Berlinger, the Berlinger Discretionary Trusts, by and through Inglis, directly paid for Berlinger and his current wife's health insurance and household expenses, including: the mortgage, property taxes, homeowner's insurance, electricity, water, garbage, sewer, telephone, internet, lawn care, pool care, and pest control.

Evidence regarding the Visa credit card given to Berlinger in September 2011 was admitted. The credit card bills all went to the trustee who paid them from the trust assets. Berlinger also took cash advances on the card to pay their maid, provide cash to his current wife, and to pay her personal expenses.

On November 27, 2012, the trial court entered orders granting Casselberry's motion for continuing writs of garnishment and the motion for substitution, which substituted Inglis as the garnishee as to the continuing writs of garnishment. The order on the continuing writs provided that all distributions made directly or indirectly to, on behalf of, or for the benefit of Berlinger by the trustees of all the Berlinger Discretionary Trusts to which Berlinger was a beneficiary would be made payable to Casselberry unless, at the time of any future distributions, there was no alimony or alimony arrears owed. Further, the order provided that if the trustee wished to make distributions to Berlinger beyond the amount of the then outstanding amount of alimony, the trustee must seek court approval before doing so to ensure that there remained sufficient assets in the trust to secure the continued payment of alimony.

Berlinger and Inglis pursued separate appeals. See Inglis, slip op. at 1, ––– So.3d at ––––.

II. ANALYSIS
A. Discretionary Trusts

Berlinger argues that section 736.0504 specifically prohibits Casselberry from attaching distributions made to or for Berlinger because the trusts are discretionary trusts 4 and are afforded greater protection from creditors under the Florida Trust Code. We disagree. We conclude that the Florida Supreme Court's decision in Bacardi v. White, 463 So.2d 218 (Fla.1985), is controlling. See also§§ 736.0503, 736.0504.

Because resolving this issue involves statutory interpretation, we review the trial court's order de novo. Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 194 (Fla.2007).

The facts of this case are very similar to the facts in Bacardi, 463 So.2d 218. The parties in Bacardi entered into a marital settlement agreement during the divorce process in which the former husband agreed to pay the former wife $2000 per month in alimony. Id. at 220. Soon after entry of the final judgment, he stopped paying alimony. Id. The former wife obtained two judgments for unpaid alimony and a judgment for attorney's fees. Id. She then served a writ of garnishment on the trustee of the trust and later obtained a continuing writ of garnishment against the trust income for future alimony payments as they became due. Id.

The trustee and the former husband appealed the garnishment order, asserting that the trust could not be garnished for the collection of alimony because it contained a spendthrift provision. Id. at 221.The Florida Supreme Court concluded that, in support cases, the restraint of spendthrift trusts should not be an absolute bar to the enforcement of alimony orders. Id. at 222. The court further held that garnishment as an enforcement alternative should be allowed only as a “last resort” and that when traditional remedies available to the spouse seeking to enforce support orders are not effective, ...

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  • Levitan v. Rosen
    • United States
    • Appeals Court of Massachusetts
    • May 6, 2019
    ...a public policy favoring spendthrift provisions in trusts and protecting a beneficiary's trust income ...." Berlinger v. Casselberry, 133 So. 3d 961, 966 (Fla. Dist. Ct. App. 2013).8 Here, any uncertainty in the meaning or operation of the spendthrift provision can be attributed to the faci......
  • Berlinger v. Wells Fargo, N.A.
    • United States
    • U.S. District Court — Middle District of Florida
    • October 16, 2015
    ...all Trusts at issue in this case are discretionarytrusts. Fla. Stat. §§ 736.0506(1); 736.0504(1). See also Berlinger v. Casselberry, 133 So.3d 961, 964 n.4 (Fla. 2d DCA 2014); Inglis v. Casselberry, 137 So. 3d 389 (Fla. 2d DCA 2013). (1) Rosa Trust The Rosa Trust contains a "Protective Prov......
  • Inglis v. Casselberry
    • United States
    • Florida District Court of Appeals
    • July 15, 2016
    ...The protracted history of the litigation between the parties is laid out in two prior opinions from this court. Berlinger v. Casselberry, 133 So.3d 961 (Fla. 2d DCA 2013) ; see also Inglis v. Casselberry, 137 So.3d 389 (Fla. 2d DCA 2013). To summarize, after the former spouses entered in a ......
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    • Florida District Court of Appeals
    • May 17, 2019
    ...or future distributions to or for the benefit of the beneficiary." (emphasis added) (footnote omitted)); Berlinger v. Casselberry, 133 So.3d 961, 964–65 (Fla. 2d DCA 2013).The mother obtained a valid child support order on May 22, 2009, which was per curiam affirmed by this court on appeal ......
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