Cooke, Matter of, 60669

• Decision Date: 04 March 1982
• Docket Number: No. 60669,60669
• Citation: 412 So.2d 340
• Parties: In the Matter of John L. COOKE, individually and d/b/a J. L. Cooke Realty and Maureen E. Cooke, Bankrupt. John L. COOKE, Plaintiff-Appellant, v. Sonia URANSKY, Trustee, Defendant-Appellee.
• Court: Florida Supreme Court

Page 340

412 So.2d 340

In the Matter of John L. COOKE, individually and d/b/a J. L. Cooke Realty and Maureen E. Cooke, Bankrupt.

John L. COOKE, Plaintiff-Appellant, v. Sonia URANSKY, Trustee, Defendant-Appellee.

No. 60669.

Supreme Court of Florida.

March 4, 1982.

Rehearing Denied April 28, 1982.

Philip L. Burnett, Fort Myers, for plaintiff-appellant.

Robert L. Donald of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Fort Myers, for defendant-appellee.

ALDERMAN, Justice.

The United States Circuit Court of Appeals, the former Fifth Circuit, asks by certified question whether Florida allows foreigners visiting the United States as tourists to place a residence owned in this state beyond the reach of creditors under the Florida homestead exemption. Cooke v. Uransky (In the Matter of Cooke), 643 F.2d 277 (5th Cir. 1981). We answer this question in the negative and agree with the resolution of this issue by the United States District Court for the Middle District of Florida in Cooke v. Uransky (In the Matter of: John L. Cooke), Case No. 79-1190-Civ-T-GC (May 1, 1980), wherein the district court adopted the order of the bankruptcy judge.

Cooke, a Canadian citizen who was a temporary visitor in Florida merely as a tourist, filed a petition for voluntary bankruptcy on June 19, 1979, and claimed a Fort Myers' residence as his homestead, exempt from claims of creditors pursuant to article X, section 4 of the Constitution of Florida. The trustee in bankruptcy filed her report of exempt property and disallowed the homestead exemption claim, and Cooke subsequently filed an objection to the trustee's report. The bankruptcy judge agreed with the trustee's report and determined that Cooke was a citizen of Canada, was not registered as a resident alien pursuant to the provisions of the United States Code governing the status of aliens, and did not have a permanent visa but was in the United States as a tourist. The bankruptcy judge explained that while it is no longer necessary that the head of the family reside in Florida, the bankrupt is still required to establish that he intended to make the property which he claims as homestead his or his family's permanent place of residence. Relying on the rationale of our decision in Juarrero v. McNayr, 157 So.2d 79 (Fla.1963), the bankruptcy judge concluded that Cooke was incapable of declaring a Florida home as his permanent residence unless his legal status changed, and therefore he could not avail himself of the homestead benefits under article X, section 4 of the Florida Constitution. In the Matter of Cooke, 1 B.R. 537 (Bkrtcy.N.D.Fla.1979).

Cooke argues that this constitutional provision relating to homestead exemption contains no prerequisite that there be an intent to make the property in question his or his family's place of residence. He maintains that the 1968 amendment to the homestead provision, eliminating the requirement that the head of the family reside in this state, also abrogated any requisite that there be an intention to make the property his or his family's permanent residence.

We reject this contention, and we hold that although it is not necessary that the head of the family reside in the state or intend to make the property in question his permanent residence, he must establish that he intended to make this property his family's permanent residence.

Article X, section 4, Constitution of Florida (1968), provides for exemption of a homestead owned by the head of a family and states:

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by the head of a family:

(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner's consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or his family;

....

Article X, section 1, Constitution of Florida (1885), provided for the exemption of homestead owned by a head of a family residing in this state and stated:

SECTION 1. Exemption of homestead; extent.-A homestead to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this State, together with one thousand dollars worth of personal property, and the improvements on the real estate, shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists....

The 1885 constitution was consistently construed to impose two separate and distinct requirements before the head of the family owning the property may qualify for homestead exemption. One requirement was that he must intend to make the property his family's permanent residence, and the other was that he must reside in this state. See, e.g., In re Estate of Van Meter, 214 So.2d 639, 643 (Fla. 2d DCA 1968), approved, 231 So.2d 524 (Fla.1970).

The actual characterization of property as homestead depends upon the intention of the head of the family to make the property his family's permanent residence. Hillsborough Inv. Co. v....