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Kerzner v. Kerzner

Florida Court of Appeal, Third District

November 30, 2011

Rina KERZNER, Appellant,
v.
Stuart J. KERZNER and Dana A. Kerzner, Appellees.

Paglino & Degenhardt and Joseph S. Paglino, North Miami Beach, for appellant.

Page 215

Stuart Kerzner and Dana A. Kerzner, in proper persons.

Before ROTHENBERG, LAGOA and EMAS, JJ.

EMAS, J.

This is an appeal from an order and final judgment which determined that proceeds from the sale of a marital home, pursuant to the terms of a marital settlement agreement, were subject to homestead protection under the Florida Constitution. We affirm.

FACTS AND BACKGROUND

Stuart Kerzner (" Stuart" ) and Dana Kerzner (" Dana" ) were married in 2002 in Miami-Dade County. Several years later, Stuart filed a petition for dissolution of the marriage. Stuart and Dana negotiated and executed a marital settlement agreement and addendum (" MSA" ), which described how their assets and liabilities would be divided. The primary asset of the marriage was the marital home; they agreed to sell the home and use the proceeds to pay various debts of each person. The MSA provided in pertinent part:

The parties agree that any lien or encumbrances on the marital home not specifically listed in the parties' Marital Settlement Agreement or Addendums thereto as liens or encumbrances to be paid shall be the sole responsibility of the Husband and shall be paid from his share of the proceeds. This shall include, but not be limited to, lien(s) from the Husband's attorney and any loans taken by the Husband except those listed in the Marital Settlement Agreement and Addendums thereto.

The trial court entered an Agreed Final Judgment of Dissolution of Marriage, approving and incorporating the MSA. A purchaser for the home was located and Tri-County Title Company was engaged to ensure the purchaser received clear title. Tri-County discovered three judgments totaling $234,715.50 against Stuart for unpaid child support owed to his first former wife, Rina Kerzner (" Rina" ).

Upon discovering that Stuart and his current ex-wife were selling their marital home, Rina intervened in this action to make a claim against Stuart's proceeds from the sale of the marital home. Rina contended that the terms of the MSA between Stuart and Dana established that Stuart did not have a good faith intent to reinvest the proceeds into a new homestead property and constituted a waiver of Stuart's constitutional homestead protection.

To allow the sale to be completed, Stuart, Rina and Dana entered into an agreement releasing the marital home from the outstanding judgments, allowing the judgments to attach to Stuart's share of the sales proceeds, which would be escrowed pending a determination by the trial court whether, under the MSA, Rina's judgments could be satisfied from Stuart's share of the proceeds. The lower court ratified this agreement, the property sold on June 14, 2010, and Stuart's share— $228,682.96— was held in escrow.

The trial court thereafter conducted a hearing, took testimony, received memoranda of law, and determined that the proceeds were protected from creditors by the homestead clause of the Florida Constitution. The court further determined that the terms of the MSA did not constitute a waiver of the homestead protection afforded under the Florida Constitution. Finally, the trial court determined, based upon Stuart's testimony (and the testimony of Stuart's realtor) [1] that Stuart intended

Page 216

to use his share of the proceeds from the sale of the marital home to buy a new home. The court entered an order and judgment authorizing the release of the escrowed ...


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