Matter of Blasendorf, Bankruptcy No. 82-1205

• Decision Date: 15 April 1983
• Docket Number: Adv. No. 82-0490.,Bankruptcy No. 82-1205
• Citation: 29 BR 559
• Parties: In the Matter of Dorothy Louise BLASENDORF, Debtor. Dorothy Louise BLASENDORF, Plaintiff, v. CREDITHRIFT OF AMERICA, Defendant.
• Court: U.S. Bankruptcy Court — Middle District of Florida

29 B.R. 559 (1983)

In the Matter of Dorothy Louise BLASENDORF, Debtor.

Dorothy Louise BLASENDORF, Plaintiff, v. CREDITHRIFT OF AMERICA, Defendant.

Bankruptcy No. 82-1205, Adv. No. 82-0490.

United States Bankruptcy Court, M.D. Florida, Tampa Division.

April 15, 1983.

Gerald R. Sage, Tampa, Fla., for defendant.

Roger Hartley, Tampa, Fla., for plaintiff.

MEMORANDUM OPINION

ALEXANDER L. PASKAY, Chief Judge.

THIS IS a contested matter and the question in controversy is the right of Dorothy Blasendorf, the Chapter 7 Debtor to invalidate the lien of Credithrift of America (Credithrift) pursuant to § 522(f)(2) of the Bankruptcy Code. The Debtor instituted the above-captioned adversary proceeding to invalidate the Defendant's lien to the extent that the lien impairs her exemption rights. Credithrift, however, challenges the Debtor's right to exercise the § 522(f) voiding powers contending the Debtor is not qualified to obtain benefits of the exemption laws of this State, Fla. Const. Art. X, § 4; Chap. 222, Fla.Stat. In the alternative, Credithrift alleges that the items claimed as exempt by the Debtor have a value in excess of the statutory ceiling for exemptions of personal property in this state, i.e. $1,000. Thus, even if the Court determines that the Debtor is entitled to claim exemptions, she can invalidate Credithrift's lien only to the extent that the lien impairs her exemption rights.

The facts relevant to the resolution of this controversy as established by the record and by the testimony can be summarized as follows:

Dorothy Blasendorf resided in the State of Illinois with her husband until 1978 and her husband having obtained a new position in the State of Florida, they left their residence in Illinois and were enroute to Florida in January of 1979 when her husband was fatally stricken with a congestive heart failure in Lakeland, Florida, before they reached their ultimate destination, to wit: Tampa, Florida. On June 18, 1982, the date she filed her Petition for Relief, she resided in an apartment together with her 16 year old married daughter and her 18 year old son-in-law.

The record further reveals that the Debtor's son-in-law, a young man without any special skills, lost his employment. It further appears that he is in good health; is not incapacitated in any sense, due to either a physical or mental condition; that he is able to discharge his responsibilities as the head of the household of his family unit consisting of himself and his wife. There is some evidence in the record that neither the daughter nor the son-in-law contribute any meaningful amount to the currently existing common household maintained by the Debtor by paying anything for their room and board.

Based on the foregoing, it is the contention of Credithrift that the Debtor is not the head of a household, therefore, she is not entitled to the benefits of the exemption laws of this State. In opposition of the contention of Credithrift that she is not entitled to any exemptions, it is the contention of the Debtor first that by virtue of § 222.19 of the Florida Statutes, she is entitled as a widow to enjoy the benefits of the exemptions provided for in Art. X, § 4, Fla. Const. In addition, it is the contention of the Debtor that, in any event, she is the head of the family by virtue of the fact that she now supports her daughter and, therefore, she is entitled to personal property exemptions under the laws of this State, even absent of the savings provision of § 222.19 of F.S. preserving the right to exemption to the surviving spouse.

Considering these contentions, seriatim, it is well to state at the outset that homestead laws of this State are founded upon considerations of public policy, their purpose being to promote the stability and welfare of the State by encouraging property ownership and independence on the part of the citizen and by preserving a home where a family may be sheltered and live beyond the reach of economic misfortune. Bigelow v. Dunphe, 143 Fla. 603, 197 So. 328 (1940) reh. den. 144 Fla. 330, 198 So. 13; Collins v. Collins, 150 Fla. 374, 7 So.2d 443 (1942). It is well established that the provisions of the homestead laws must be carried out in a liberal and beneficient spirit in which they were enacted. Drucker v. Rosenstein, 19 Fla. 191 (1882); Pasco v. Harley, 73 Fla. 819, 75 So. 30 (1917); White v. Posick, 150 So.2d 263 (2d DCA 1953); Graham v. Azar, 204 So.2d 193 (Fla.1967). It is equally true, however, that exemption laws should not be applied as to make them an instrument of fraud or imposition on creditors. Milton v. Milton, 63 Fla. 533, 58 So. 718 (1912); Jetton Lbr. Co. v. Hall, 67 Fla. 61, 64 So. 440 (1914); Pasco v. Harley, supra; Hillsborough Investment Co. v. Wilcox, 152 Fla. 889, 13 So.2d 448 (1943). Each case must be considered and decided on its own facts and circumstances.

In this State, the traditional right to claim benefits of the exemptions laws was limited to a person who qualified to be the head of the household. In order to qualify as the head of the household, there must be at least two persons who live together a family relationship and one member of the family unit must be the "head" of the family. In re Kionka Estate, 113 So.2d 603 (Fla. 2d DCA 1959). This was the law of this state until the Florida legislature enacted Florida Statute 222.19(2) which now provides in part as follows:

222.19 F.S. Surviving Spouse as Head of Family; Defined

The head of family status required to qualify the owner\'s property to be exempt from homestead exemption permitting such property to be exempt from forced sale under the process of any court as set forth in § 4, Art. X of the State Constitution, shall inure to the benefit of the surviving tenant by the entirety or spouse of the owner. The acquisition of this shall inure to the surviving spouse irrespective of the fact that there are not two persons living together as one family under direction of one of them who is recognized as the head of the family. (emphasis supplied)

It is clear that the legislature intended to preserve the head of the household status and the attendant benefits to the surviving spouse, whether the surviving spouse is a widow or widower, thus, applying the liberal and beneficent construction traditionally accorded to exemption laws. Marsh v. Hartley, 109 So.2d 34 (Fla. 2d DCA 1959). This Court is satisfied that the Statute under consideration was a deliberate expression of the legislative intent to permit the preservation of the head of household status to a...