Fleet v. Zwick, 98CA1163.
| Decision Date | 23 December 1999 |
| Docket Number | No. 98CA1163.,98CA1163. |
| Citation | 994 P.2d 480 |
| Parties | Norman L. FLEET; Fleet Resources, Inc., a Colorado corporation; The 1988 Gaines County Soybean Venture, Ltd., a Colorado limited partnership; and Fleet Resources, Inc., suing derivatively on behalf of the 1988 Gaines County Soybean Venture, Ltd., Plaintiffs-Appellees, v. Dwight ZWICK, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
No Appearance for Plaintiffs-Appellees.
James T. Ayers, Jr. P.C., James T. Ayers, Jr., Littleton, Colorado, for Defendant-Appellant.
Opinion by Judge ROY.
In this garnishment proceeding, Dwight Zwick (debtor) appeals from an order granting the traverse of Norman L. Fleet, Fleet Resources, Inc., a Colorado corporation; 1988 Gaines County Soybean Venture, Ltd., a Colorado limited partnership; and Fleet Resources, Inc., suing derivatively on behalf of the 1988 Gaines County Soybean Venture, Ltd. (collectively the creditors), to his claim of a homestead exemption. Appellees have not appeared. We reverse the order granting traverse.
Debtor and Fleet Resources, Inc., both invested in 1988 in Gaines County Soybean Venture, Ltd., which proved unsuccessful. The creditors commenced litigation against debtor alleging breach of contract and fraud and were awarded a judgment in the initial amount of $112,532. In an attempt to collect the judgment, the creditors executed on debtor's home which he owned in joint tenancy with his spouse. The home was sold at a public sale pursuant to the statute. Debtor claimed a homestead exemption pursuant to § 38-41-207, C.R.S.1999, which permits the debtor $30,000 in funds from a sale on execution free from creditors' claims. The statute provides, in pertinent part, as follows:
The proceeds from the exempt amount under this part 2, in the event the property is sold by the owner, or the proceeds from such sale under section 38-41-206 paid to the owner of the property or person entitled to the homestead shall be exempt from execution or attachment for a period of one year after such sale if the person entitled to such exemption keeps the exempted proceeds separate and apart from other moneys so that the same may be always identified. If the person receiving such proceeds uses said proceeds in the acquisition of other property for a home, there shall be carried over to the new property the same homestead exemption to which the owner was entitled on the property sold. (emphasis added)
The homestead funds were deposited in the trust account of debtor's attorney (homestead account) and then one-half ($15,000) was distributed to debtor's spouse, $10,209.34 was distributed to the attorney in payment of his fees for services rendered, and the balance, $4,674.11 remained deposited in the homestead account.
The creditors served the attorney with a writ of garnishment seeking all property in his possession or control belonging to debtor. The attorney responded that he held funds belonging to debtor. Debtor then asserted the homestead exemption pursuant to § 38-41-207 as to the funds remaining in the homestead account.
The creditors filed their traverse to debtor's claim of an exemption which was granted by the trial court. In addition, the trial court awarded the creditors attorney fees and costs in the amount of $667 as a sanction against debtor for avoiding service of process and refusing to permit his counsel to accept service.
Debtor first contends that the trial court erred in holding that the removal of funds from the homestead account destroys the homestead exemption as to the balance of the funds remaining in the homestead account. We agree.
The primary purpose of the Colorado homestead exemption is to secure to the debtor owning his residence and to his or her family a home regardless of the solvency or insolvency of the family. See In re Dodge, 685 P.2d 260 (Colo.App.1984)
; Woodward v. People's National Bank, 2 Colo.App. 369, 31 P. 184 (1892).
It has long been the policy of this state to preserve the home for the family, even at the sacrifice of just demands, because the preservation of the home is deemed of paramount importance. To that end, the homestead exemption is to be liberally...
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McCall v. Meyers
...are bound by the record presented and may consider only arguments and assertions supported by the evidence in the record. Fleet v. Zwick, 994 P.2d 480 (Colo.App.1999); In re Marriage of Tessmer, 903 P.2d 1194 (Colo.App.1995). A party cannot overcome a deficiency in the record by statements ......
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...and assertions supported by the evidence in the record. McCall v. Meyers, 94 P.3d 1271, 1272 (Colo.App.2004)(citing Fleet v. Zwick, 994 P.2d 480 (Colo.App.1999)). A petitioner cannot overcome the lack of information in the record by statements in the briefs. McCall v. Meyers, supra; In re M......
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...cannot correct a deficiency by other means, such as (1) attaching new material to the notice of appeal, see, e.g., Fleet v. Zwick, 994 P.2d 480, 483 (Colo.App.1999); (2) attaching new material to the briefs, see, e.g., Johnson v. Colorado State Bd. of Agriculture, 15 P.3d 309, 311 (Colo.App......
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...Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir.1995) (if issue is not briefed and argued, it is waived). 24. Appellant's Brief at 10–11. 25.Fleet v. Zwick, 994 P.2d 480, 482 (Colo.App.1999); In re Dodge, 685 P.2d 260, 2 (Colo.App.1984). 26. Order at 6, in App. at 98. 27.Walker v. Mathe......