Matter of Rivera
| Decision Date | 23 July 1980 |
| Docket Number | Bankruptcy No. 80-433 C. |
| Citation | 5 BR 313 |
| Parties | In the Matter of Michael A. RIVERA dba Michael's Devil Crabs, Debtor. |
| Court | U.S. Bankruptcy Court — Middle District of Florida |
George T. Hadley, trustee.
Jary C. Nixon, Tampa, Fla., for trustee.
James Farley, Michael A. Rivera, Tampa, Fla., debtor.
ORDER ON TRUSTEE'S OBJECTION TO LISTED EXEMPT PROPERTY
THE MATTER IN controversy is the right of Michael A. Rivera, the Debtor involved in this Chapter 7 proceeding, to avail himself of the benefits of the exemption laws of this State. His right to these benefits is challenged by the Trustee of the estate who contends that the Debtor, not being the head of a family, is not entitled to the benefits of the exemption laws of this State.
The underlying facts governing this controversy are without dispute and can be summarized as follows:
Michael A. Rivera, the Debtor involved in this proceeding, is a single man maintaining a common household since March 1, 1979 with one Dale Kersch, a single woman. During this period, the Debtor was gainfully employed and supported himself and Dale Kersch. On April 5, 1980, Dale Kersch gave birth to a child, after the Debtor filed his voluntary petition for relief under Chapter 7 of the Code on April 2, 1980. There is no evidence in this record that the Debtor ever acknowledged in writing, prior to the commencement of the case, that he is the father of the child simply because on that date there was no child whom he could rightfully claim as a dependant. Neither was there any judicial determination under the appropriate statutory proceeding of this State, Florida Statutes, § 742.011, that he is, in fact, the father of the child to whom he owes a legal obligation to support. Of course, there is no question that he never had, and still does not have, any legal obligation to support his roommate, Dale Kersch.
It is the contention of the Trustee that since the Debtor does not qualify to be head of a family under the laws of this State, he is not entitled to any exemptions. In response, the Debtor contends that he is the head of a family since he supported and still supports, Dale Kersch and also the child born on April 5, 1980.
Before considering the applicable legal principles which govern the right of exemptions under the laws of this State, it should be noted at the outset that exemption rights of a Debtor involved in a proceeding under the Bankruptcy Code are governed first by the Code itself, § 522(b)(2)(A), and second, by the applicable local laws. This controlling Section of the Code permits a debtor to exempt from property of the estate, any property that is exempt under State or local law, that is applicable on the date of filing of the petition (emphasis supplied), at the place in which the Debtor's domicile has been located for 180 days immediately preceding the date of filing the petition. Thus, it is evident that the right to claim exemptions by a Debtor is governed by the facts and governing circumstances which existed on the date the petition was filed and not by any changes which may have occurred thereafter. Exemption rights under the laws of this State have their genesis in the Constitution of this State itself, Fla.Const. Art. 10, § 4 and the method of claiming exemption rights are implemented by Statute, Florida Statutes, Ch. 222. According to these provisions rights to exemptions are reserved to individuals who qualify to be the head of a family with some exceptions not relevant to this controversy, i.e. exemptions relating to insurance policies. Florida Statutes, § 222.14.
To qualify to be a head of the household, there must be at least two persons living together as one family and one of the two must be recognized and acting as the head of that family. The family unit required may be a family in law, such as the relationship of a husband and wife, or parent and child, or a family in fact, a relationship in which an established and continuing personal authority, permanent responsibility and obligation actually rests upon one as the head of the family for the welfare of others who, in fact, recognize and observe a family relationship and look to one as the head of the family (emphasis supplied). In re Kionka's Estate, 113 So.2d 603 (Fla.App.1959). Accordingly, there must be either a legal or a moral obligation to discharge the duties of a head of the family permanently and continually and actual support, temporary...
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