Colwell v. Royal International

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 98-5626 11/19/99
Non-Argument Calendar THOMAS K. KAHN
CLERK
D. C. Docket No. 97-08500-CV-ASG
IN RE:
WILLIAM FREDERICK COLWELL and
RUBY COLWELL,
Debtors.
WILLIAM FREDERICK COLWELL,
RUBY COLWELL,
Plaintiffs-Appellees,
versus
ROYAL INTERNATIONAL TRADING
CORPORATION,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Florida
(November 19, 1999)
Before ANDERSON, Chief Judge, DUBINA, Circuit Judge and GODBOLD, Senior
Circuit Judge.
PER CURIAM:
The Colwells jointly filed a Chapter 7 bankruptcy case. Although Florida law
does not recognize legal separations the Colwells had been separated for 3 ½ years
before filing the petition. Prior to the bankruptcy petition each had acquired a separate
home and had obtained a separate homestead exemption on that home.
Florida has chosen to opt out of federal exemptions and elected to apply its
own. 11 U.S.C. § 522 (b)(1); Fla. Stat. §§ 222.21 and 222.20; 3 Collier on
Bankruptcy, § 522.08 at 522-44, n. 8a. The Colwells asserted to the bankruptcy court
that Article X, § 4 of the Florida constitution required that they be granted separate
homestead exemptions. Royal International excepted. In 1998 the bankruptcy court
sustained the exception, stating that it could find no case law to support dual
homestead exemptions for married individuals residing on two distinct, non-
contiguous parcels of property. See In re Colwell, 208 B.R. 85 (Bankr. S. D. Fla.
1997). The Colwells appealed to the United States District Court, S.D. Florida, which
reversed the bankruptcy court. Royal appealed to the Eleventh Circuit.
Pursuant to Erie Railway the bankruptcy court must interpret and apply the
Florida exemption law in the same manner as a Florida state court. Florida state court
decisions establish that as a matter of the public policy of the state, giving a liberal
construction as required, a homestead exemption can be established to each of two
people who are married but legitimately living apart in separate residences, if they
otherwise meet the requirements of the exception, and, by “legitimately” they mean
2
that there is no fraudulent or otherwise egregious act by the beneficiary of the
exemption. Law v. Law 738 So. 2d 522 (Fla. App. 4th Dist. Aug. 19, 1999) ; In re
Englander, 95 F.3d 1028 (11th Cir. 1996) (closely analyzing Florida law and using
Florida state court cases to determine the applicability of the Florida homestead
exemption); Myers v. Leahrer, 671 So. 2d 864, 866 (Fla. App. 4th Dist. 1996); Public
Health Trust of Dade County v. Lopez, 531 So. 2d 946, 948 (Fla. 1988); Isaacson v.
Isaacson, 504 So. 2d 1309 (Fla. App. 1st Dist. 1987); see also Radin v. Radin, 593
So. 2d 1231 (Fla. App. 3d Dist. 1992). There is a presumption that the exemption
applies. See Snyder v. Davis, 699 So. 2d 999, 1002 (Fla. 1997). The district court
concluded that the living arrangements of the Colwells were not shown to be the
subject of fraud and that Royal had not brought forth evidence to overcome the
presumption favoring the exception. There was no error.
AFFIRMED.
3