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Civil and Criminal Issues Florida Homestead Services -- Florida Homestead Exemption Act MiniBB / Civil and Criminal Issues /  

Homestead and Family Law - Enforcement Of Alimony, Child Support Awards, Attorney Fees

Author johnbsims3
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#1 - Posted: 22 Dec 2006 07:49 - Edited by: johnbsims3 
26 Fla. Jur 2d Family Law 1182

Family Law

Part Two. Annulment; Separation; Dissolution of Marriage
IX. Postjudgment Proceedings
C. Enforcement Of Alimony, Child Custody, Visitation, Child Support Awards, And Orders For Attorney's Fees
4. Methods of Enforcement
a. In General

1182. Homestead exemption

The Florida Constitution prohibits the forced sale of homestead property, except for payment of taxes, obligations contracted to improve the property, or labor performed on the property.[FN1] The homestead exemption should be liberally construed and exceptions to the exemption should be strictly construed.[FN2]

Because the purpose of the homestead exemption is to protect the obligor and the obligor's family from destitution and becoming a public charge, the exemption statutes will not, unless the contrary intention is clearly shown, be construed to enable the obligor to claim its benefits against the very persons to whom he or she owes the obligation of support and maintenance[FN3] An exception to the exemption may be made and an equitable lien may be awarded against homestead property where a plaintiff can establish fraud or reprehensible conduct on the part of the beneficiary of the constitutional protection.[FN4] Thus, a homestead is not conclusively exempted from sale on execution to satisfy a judgment for arrears of alimony or child support.[FN5] Where the plaintiff is able to show sufficient evidence of fraud or reprehensible conduct by the defendant to sustain the imposition of an equitable lien, the trial court must set forth the precise amount of the equitable lien in order to avoid placing an insuperable obstacle to the marketability of the homestead.[FN6]

Cases:
Florida homestead exemption cannot be employed as a shield and defense after fraudulently imposing on others. West's F.S.A. Const. Art. 10, 4(a). In re Hecker, 316 B.R. 375 (Bankr. S.D. Fla. 2004).

More pointed evidence than husband's "adamant" refusal to produce court-ordered financial information was required, along with specific factual findings, to warrant imposition of equitable lien, on homestead property husband acquired post-separation, as contempt remedy for his failure to comply with orders for temporary alimony, support and attorney's fees; court failed to find husband was using newly acquired homestead as instrument of fraud or as means to escape his support obligation to wife. Nadrich v. Nadrich, 872 So. 2d 994 (Fla. Dist. Ct. App. 4th Dist. 2004).

Absent showing of affirmative fraudulent or reprehensible conduct that improperly interfered with former wife's ability to recover alimony, imposition of equitable lien on homestead property owned by former husband for past due alimony payments was improper, where husband lost his previous financial ability to make $50,000 per month payments from his non-exempt resources. Fla. Const. Art. 10, 4. Robles v. Robles, 860 So. 2d 1014 (Fla. Dist. Ct. App. 3d Dist. 2003).


[FN1] Fla. Const. Art. X 4(a)(1).
[FN2] Tramel v. Stewart, 697 So. 2d 821, 22 Fla. L. Weekly S351 (Fla. 1997); Graham v. Azar, 204 So. 2d 193 (Fla. 1967); Smith v. Smith, 761 So. 2d 370, 25 Fla. L. Weekly D1003 (Fla. Dist. Ct. App. 5th Dist. 2000), reh'g denied, (June 6, 2000).

[FN3] Anderson v. Anderson, 44 So. 2d 652 (Fla. 1950); Dyer v. Beverly & Tittle, P.A., 777 So. 2d 1055, 26 Fla. L. Weekly D191 (Fla. Dist. Ct. App. 4th Dist. 2001), reh'g denied, (Mar. 9, 2001) and review denied, 796 So. 2d 536 (Fla. 2001); Smith v. Smith, 761 So. 2d 370, 25 Fla. L. Weekly D1003 (Fla. Dist. Ct. App. 5th Dist. 2000), reh'g denied, (June 6, 2000); Gepfrich v. Gepfrich, 582 So. 2d 743, 16 Fla. L. Weekly D1805 (Fla. Dist. Ct. App. 4th Dist. 1991).
[FN4] Smith v. Smith, 761 So. 2d 370, 25 Fla. L. Weekly D1003 (Fla. Dist. Ct. App. 5th Dist. 2000), reh'g denied, (June 6, 2000); Gepfrich v. Gepfrich, 582 So. 2d 743, 16 Fla. L. Weekly D1805 (Fla. Dist. Ct. App. 4th Dist. 1991); Isaacson v. Isaacson, 504 So. 2d 1309, 12 Fla. L. Weekly 716 (Fla. Dist. Ct. App. 1st Dist. 1987).
[FN5] Anderson v. Anderson, 44 So. 2d 652 (Fla. 1950); Smith v. Smith, 761 So. 2d 370, 25 Fla. L. Weekly D1003 (Fla. Dist. Ct. App. 5th Dist. 2000), reh'g denied, (June 6, 2000); Radin v. Radin, 593 So. 2d 1231, 17 Fla. L. Weekly D621 (Fla. Dist. Ct. App. 3d Dist. 1992); Isaacson v. Isaacson, 504 So. 2d 1309, 12 Fla. L. Weekly 716 (Fla. Dist. Ct. App. 1st Dist. 1987).
[FN6] Zebracki v. Zebracki, 648 So. 2d 850, 20 Fla. L. Weekly D197 (Fla. Dist. Ct. App. 4th Dist. 1995); Radin v. Radin, 593 So. 2d 1231, 17 Fla. L. Weekly D621 (Fla. Dist. Ct. App. 3d Dist. 1992).

Civil and Criminal Issues Florida Homestead Services -- Florida Homestead Exemption Act MiniBB / Civil and Criminal Issues /
Homestead and Family Law - Enforcement Of Alimony, Child Support Awards, Attorney Fees
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