Vandiver v. Vincent, 2211

• Decision Date: 28 March 1962
• Docket Number: No. 2211,2211
• Citation: 139 So.2d 704
• Parties: Mrs. V. N. (Minnie Belle) VANDIVER, Appellant, v. Larry Patterson VINCENT, a minor, by his next friend, Doris Vincent, and Doris Vincent, individually, and V. N. Vandiver, Appellees.
• Court: Florida District Court of Appeals

Page 704

139 So.2d 704

Mrs. V. N. (Minnie Belle) VANDIVER, Appellant, v. Larry Patterson VINCENT, a minor, by his next friend, Doris Vincent, and Doris Vincent, individually, and V. N. Vandiver, Appellees.

No. 2211.

District Court of Appeal of Florida, Second District.

March 28, 1962.

Myers, Heiman & Kaplan, Miami, for appellant.

Patterson & Shankweiler, Fort Lauderdale, for appellees.

FUSSELL, CARROLL W., Associate Judge.

This appeal is from a summary decree entered in favor of a judgment creditor in a suit for declaratory decree brought by such creditor and seeking to have the court determine that certain real and personal property belonging to the appellant was not homestead property and was not exempt from execution issued under appellees' judgment. The summary decree also ruled against appellant on her counter-claim, seeking to have appellees' judgment set aside and declared null and void.

The summary decree was entered, based on opposing affidavit of appellant and her son and on a deposition of appellant appearing in the common law suit between the parties, and in which a judgment was entered against appellant and her former husband, who is not a party to this appeal. The entire record of the common law suit constitutes Volume II of the transcript, and it is indicated in the briefs that the lower court took judicial knowledge of the contents of this record. This is not the proper way to get this evidence and record before the trial court. See Kelley v. Kelley, 75 So.2d 191 (Fla.1954). There is no indication that the proceedings in this common law record or the deposition taken therein were filed in evidence in the pending case, but no objection has been interposed on this ground by either party. At this juncture, it should be noted that counsel for appellant here did not represent any of the parties in the trial court.

The deposition of the appellant in this common law case indicates that the residence now claimed as a homestead by her was acquired in January, 1955, in the name of appellant and her then husband; that they were separated at that time and that he had returned to Indiana. Appellant and her minor son moved onto the property shortly after it was acquired and have lived in it continuously thereafter as their home. The former husband has never resided on said property, but has remained continuously in Indiana, except for a few short visits to his son. He has remarried and purchased a home in Indiana, where he and his present wife now live.

A final decree of divorce was entered in Indiana between appellant and her husband on June 12, 1957, which decree, among other things, provides that the husband should deed his interest in said residence to his wife; that the custody and control of the minor child should be vested in the wife, and that the husband should pay $25.00 per week for the support of the minor child. It is indicated that the father has paid for the clothes of the minor child and has paid the support money as ordered in the decree, but has failed to convey his interest in said residence to his wife as ordered in the decree. The wife has obtained tax exemption on said residence as a homestead and has considered that she was the sole owner of the residence as provided in the final decree. The purchase price of this residence was $15,000.00; the balance due on the mortgage is $8000.00, and the monthly payments are $83.00. Appellant does not work and has no money or property other than described in her homestead exemption affidavit. The appellant-wife's only income is the $25.00 per week received from the son's father for his support and $30.00 weekly rental for one room, for which she furnishes one meal daily for two and also does their washing and ironing. The son was 17 years of age at the time of the deposition. The final decree of divorce itself does not appear in the record, but, here again, apparently appellant's deposition has been considered and accepted as evidence by the lower court and without objection from any of the parties. Appellant in her opposing affidavit states that she is a resident of Ft. Lauderdale, Florida, and is the sole owner of the residence property; 'that said property is the homestead of affiant and affiant resides thereon in continuing communal living with affiant's minor son, Stephen Vandiver, and that affiant is in charge and is the head of the family residing on the property in the State of Florida, and that there is and always has been a family at law and a family in fact residing on said property, and that said property is the homestead of affiant.'

The affidavit of the minor, after stating that he is a resident of Ft. Lauderdale, Florida, living on the resident property, states: 'That affiant is a minor and resides upon said property with his natural mother, Mrs. V. N. (Minnie Belle) Vandiver, in continuing communal living, and that affiant recognizes his mother as being in charge of said family and being the head thereof, and that affiant recognizes his mother's authority.'

The judgment against appellant and her husband was entered July 9, 1958.

Depending upon the final decree of divorce, which is not before us, appellant is either the sole owner of the real property in question, or became the owner of an undivided one-half interest after the entry of the final decree. In either event, if she otherwise qualified, she could claim exemption in whatever interest she has in the property as her homestead. Exemption for homestead as set forth in the Constitution is as follows:

Florida Constitution, Article X, Section 1, F.S.A.:

'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 * * *. The exemption herein provided for in a city or town shall not extend to more improvements or buildings than the residence and business house of the owner * * *.'

It is therefore equally as clear that the husband, being a resident of the State of Indiana, and maintaining a wife and home there, could not claim a homestead exemption in this property in Florida.

If we accept the testimony of appellant in her deposition and also her affidavit, and the affidavit of her son, as true, which must be done in considering a motion for summary decree against her, the legal question to be resolved is whether or not, admitting that she does not provide all the support for her minor son, can she claim him as a member of her family and that she is the head of the family.

The question of who is the head of a family and entitled to a homestead exemption is one for which no hard and fast rule has yet been fixed or settled by the courts. It has been most aptly referred to in an excellent treatise on this subject by Crosby and Miller in the Florida Law Review, entitled 'Our Legal Chameleon--the Florida Homestead Exemption.'

The decisions of our courts rightly entitle this subject to the name 'Chameleon'.

We can understand this with more reason when we consider that our courts have always held that homestead laws should be construed liberally in the interest of the family and in favor of the person entitled to them. Jetton Lumber Co. v. Hall, 67 Fla. 61, 64, 64 So. 440; 51 L.R.A., N.S., 1121 (1914); West Florida Grocery Co. v. Teutonia Fire Insurance Co. (1917), 74 Fla. 220, 77 So. 209; L.R.A.1918B, 968; Clark v. Cox, 80 Fla. 63, 85 So. 173 (1920); 11 Fla.Law & Prac. 301, Homestead Exem. § 5; 16 Fla.Jur. 275, 276, Homesteads § 5. That they should be carried out in the beneficent spirit in which they were intended, 11 Fla.Law & Prac. 302, Homestead Ex. § 5; Drucker v. Rosenstein, 19 Fla. 191 (1882); Olesky v. Nicholas, 82 So.2d 510 (Fla.1955). That the exemption laws are intended to preserve for the unfortunate citizen and his family certain things necessary to entitle him to earn a livelihood. Patten Package Co. v. Houser, 102 Fla. 603, 136 So. 353 (1931).

In 11 Fla.Law & Practice, 301, Homestead Exemption § 4, it is said:

' § 4. Nature and Purpose----.

'The homestead was designed for the head of the family, for the family's protection, where it can be sheltered and live beyond the reach of financial reverses or economic misfortune. It should be so applied as to promote the prosperity of the state and to render independent and above want each citizen, to the end that his family may live beyond the reach of creditors who have given credit under such law.'

In 16 Fla.Jur. 274, 275, Homesteads § 4, it is said:

' § 4. Purpose; Public Policy.

'Homestead laws 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 the family may be sheltered and live beyond the reach of economic misfortune. The homestead exemption is designed to benefit not only the head of the household, but also the family, and to protect the family home. The statutes are intended to secure to the householder a home for himself and family, regardless of his financial condition--whether he is solvent or insolvent--without reference to the number of his creditors, and without any special regard to the extent of the estate or title by which the homestead property may be owned. The laws are not based on the principles of equity; nor do they in any way yield thereto; their purpose is to secure the home to the family even at the sacrifice of just demands, the preservation of the home being deemed of paramount importance.'

In DeCottes v. Clarkson, 43 Fla. 1, 29 So. 442 (1901), this court said:

'The true test of who is the head of a family, within the contemplation of our homestead provisions, must be found in the circumstances of the...