De La Mora v. Andonie, 3D09-3427.

• Decision Date: 15 December 2010
• Docket Number: No. 3D09-3427.,3D09-3427.
• Citation: 51 So.3d 517
• Parties: Marcus Saiz DE LA MORA, etc., et al., Appellants, v. David ANDONIE, et al., Appellees.
• Court: Florida District Court of Appeals

51 So.3d 517

Marcus Saiz DE LA MORA, etc., et al., Appellants,

v.David ANDONIE, et al., Appellees.

No. 3D09-3427.

District Court of Appeal of Florida, Third District.

Dec. 15, 2010.

R.A. Cuevas, Jr., Miami-Dade County Attorney, Melinda S. Thornton and Shanika A. Graves, Assistant County Attorneys; Bill McCollum, Attorney General, and Mark T. Aliff, Assistant Attorney General (Tallahassee), for appellants.

Tannebaum Weiss and Daniel A. Weiss, Miami, for appellees.

Before SHEPHERD, CORTIÑAS, and ROTHENBERG, JJ.

SHEPHERD, J.

This is an appeal by the Miami-Dade County Property Appraiser and the Florida Department of Revenue from a final summary judgment, bestowing an exemption from ad valorem taxation upon the owners of residential real estate in Miami-Dade County on the basis the property is the "permanent residence" of their minor children, who are "naturally dependent" upon them within the meaning of article VII, section 6(a) of the Florida Constitution.¹ We affirm the decision of the trial court.

FACTS AND PROCEDURAL HISTORY

The homeowners in this case, David and Ana Andonie, are citizens of Honduras, lawfully residing in the United States pursuant to temporary visas issued by the United States Department of Homeland Security. In 2003, the Andonies purchased a condominium in Key Biscayne,Florida, which they occupy together with their three minor children, ages 7, 12, and 14. The children are United States citizens. Prior to January 1, 2006, the Andonies timely filed an application for an exemption from real estate taxes on the property, pursuant to article VII, section 6(a) of the Florida Constitution, for the 2006 ad valorem taxing year. See Art. VII, § 4(d), Fla. Const. On the application form, David Andonie stated under oath: "My children are U.S. citizens, aged 7, 12, and 14 living at this address and are legally and naturally dependent on me, thereby qualifying for the homestead exemption." It is undisputed that David and Ana Andonie are legally incapable of qualifying as "permanent residents" of Miami-Dade County. See Juarrero v. McNayr, 157 So.2d 79, 81 (Fla.1963) (finding that a non-citizen present in the United States under a temporary visa "cannot 'legally,' 'rightfully' or in 'good faith' make or declare [himself]" a "permanent resident" of this state for purposes of article VII, section 6(a)); DeQuervain v. Desguin, 927 So.2d 232, 235 (Fla. 2d DCA 2006); Alcime v. Bystrom, 451 So.2d 1037, 1037 (Fla. 3d DCA 1984). The Miami-Dade County Property Appraiser administratively denied the application, but that decision was overturned upon petition by the Andonies to the Miami-Dade County Value Adjustment Board. In due course, the Property Appraiser contested the decision in an original proceeding filed in the Eleventh Judicial Circuit Court. See § 194.171(1), Fla. Stat. (2006). ² On cross-motions for summary judgment, the trial court found the Andonies were entitled to the exemption.

ANALYSIS

The Florida Constitution protects Florida homesteads in three distinct ways. Snyder v. Davis, 699 So.2d 999, 1001-02 (Fla.1992). Article VII, section 6(a) of the Florida Constitution provides homesteads with an exemption from taxes. Id. Article X, sections 4(a) and 4(b) afford qualifying homestead property life-time and death-time exemptions from forced sale. Id. Article X, section 4(c) imposes restrictions on the devise of homestead property for the benefit of a surviving spouse or minor child. Id. This case concerns the first of these protections.

The current provision reads in pertinent part:

SECTION 6. Homestead exemptions---

(a) Every person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner, or another legally or naturally dependent upon the owner, shall be exempt from taxation thereon, except assessments for special benefits, up to the assessed valuation of twenty-five thousand dollars and, for all levies other than school district levies, on the assessed valuation greater than fifty thousand dollars and up to seventy-five thousand dollars, upon establishment of right thereto in the manner prescribed by law.

Art. VII, § 6(a), Fla. Const. (emphasis added). The plain language of article VII, section 6(a) provides that an owner of residential real estate in Florida is constitutionally entitled to an exemption from ad valorem taxation—more accurately, a reduction in the assessed value—under either of the following two separate and independent scenarios:

1. Where the owner of the property is a permanent resident on the property,

or

2. Where someone legally or naturally dependent on the owner is a permanent resident on the subject property.

See id.

Section 196.012, Florida Statutes (2006), defines "permanent residence" for purposes of this provision as follows:

(18) "Permanent residence" means that place where a person has his or her true, fixed, and permanent home and principal establishment to which, whenever absent, he or she has the intention of returning. A person may have only one permanent residence at a time; and, once a permanent residence is established in a foreign state or country, it is presumed to continue until the person shows that a change has occurred.

(Emphasis added).³

In support of his motion for summary judgment in the trial court, David Andonie swore by affidavit to the following:

AFFIDAVIT OF DAVID ANDONIE

The following affidavit of David Andonie is made for the purpose of supporting his application for homestead exemption from property taxation for 2006 for property identified by property tax folio number 24-4232-016-2730 ("subject property"):

1. My wife Ana and I bought a condominium for ourselves and our children in April, 2003. The condominium unit is located....

2. I filed a homestead exemption application with respect to the subject property as of January 1, 2006. To the exclusion of all others, this is our home where in good faith we live. It is the residence of my wife and myself, and the permanent residence of our three U.S.-born children.

3. In this present summary judgment proceedings, my wife and I do not claim the right to homestead exemption based on our permanent residence at this location, but upon the fact that our three minor children, who are naturally and legally dependent upon my wife and me, live here on the subject property, which we as their parents and natural and legal guardians, make their home. For our children, this home is their permanent residence, where they live along with their mother and me.

....

7. Because our three children are U.S.-born and are U.S. citizens, no one can lawfully tell them that they do not have the right to remain permanently in the United States. The subject property is the permanent residence of each of our three children, Nicholas, Luisa, and Kristen.

....

9. I claim no other homestead tax exemption in Florida for myself nor for others naturally or legally dependent on me for support. All three of my children were, as of January 1, 2006, and through today, are entirely dependent on my wife and me for support and maintenance, living andpermanently residing on the subject property.

There is no evidence contradicting the factual assertions made by David Andonie in his affidavit, nor is there any evidence in the record from which we can conclude the affidavit was made other than in good faith. Although one might wonder whether his assertions are congruent with the laws of nature, we apply in this court the constitution and laws of the State of Florida. Applying this law, whether of the statutory variety or an ordinary and customary usage standard, it cannot be gainsaid that these Honduran parents have adequately declared that whatever may become of their ability to remain in the United States in the future, they fully plan and intend for their U.S.-born children to "permanently resid[e]" in the United States.

Despite the Andonies' sworn assertions, the Property Appraiser asserts in these situations the taxpayer-parents still cannot maintain an exemption through their children. The argument appears to be comprised of two thrusts. First, the Property Appraiser asserts the minor children's domicile is dependent upon the domicile of the father, who is a non-Florida resident. Secondly, the Property Appraiser relies on the term "who resides thereon," as found in section 196.031(1)(a), to argue the statute requires the title owner to reside on the property permanently. As discussed below, neither argument has merit.

Minors

First, relying principally on authorities that pre-date the adoption of article VII, section 6(a), the Property Appraiser advances the broadly accurate proposition in the common law that " '[M]inors are incapable in Florida of making a choice of a domicile ... independently of the domicile of their father [or other parent] ...,' " citing to Beekman v. Beekman, 53 Fla. 858, 43 So. 923, 924 (Fla.1907), and Chisholm v. Chisholm, 98 Fla. 1196, 125 So. 694, 702 (Fla.1929).⁴ On the strength of this common law proposition, the Property Appraiser asserts that because the domicile of the Andonies must be a place other than Florida, the domicile of their children must also be a place other than Florida. Not only is this general common law proposition contravened by the constitutional provision we are called upon to apply in this case,⁵ but also the Property Appraiser's reliance on theseauthorities is itself misplaced. A careful study of these cases—both marital dissolution cases in which the dispositive issue was whether the requisite jurisdictional residency requirement had been satisfied by the petitioner—reveals that the petitioner either was seeking to include periods of time during her minority when she was either living in another state with her parents and "merely intended" to move to Florida, see Beekman, 53 Fla. at 862, 43 So. at 924, or could not prove her parents were domiciled in Florida during the relevant time period, see Chisholm, 98 Fla. at 1219, 125 So. at 702. In factual contrast,...