Florida

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

Verone Marin Fehlhaber v. Robert Fehlhaber
502 So. 2d 33 (Fla.App. 01/20/1987)

Synopsis

In the case at bar, the deceased, Fred F. Fehlhaber, established an intervivos trust. Subsequently, his wife traveled to California and sought a final judgment of legal separation and determination of community property, among other things. Decedent's wife secured a final judgment from the California court, in regards to the community property, claiming her husband had significant assets. Decedent's wife was awarded over $9.9 million in damages. She then proceeded to return to Florida and successfully established the California judgment in Florida.

Prior to decendent's wife obtaining the judgment, decedent acquired a divorece in Florida and remaried. He then began to transfer his assets to his new wife. The appellant, as a judgment creditor in the estate, filed a claim against the specific assets in the trust and those transferred to the subsequent wife, Muriel, and also sought the appointment of an administrator ad litem of those assets.

The court held that at the time the appellant accepted the California money judgment, rather than pursue her community property interest in the specific property owned by Fred and commence further proceedings to enforce that judgment, she waived any further right to seek a claim against the specific assets of Fred and was relegated to status of a judgment creditor.

Opinion

01/20/1987 VERONE MARIN FEHLHABER v. ROBERT FEHLHABER

[Editor's note: footnotes (if any) trail the opinion]

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

VERONE MARIN FEHLHABER, Appellant,

v.

ROBERT FEHLHABER, as Personal Representative of the Estate

of FRED ROBERT FEHLHABER, deceased and as Trustee,

CHRISTIANA a/k/a CHRISTIAN FEHLHABER and

JULIANA FEHLHABER and ROBERT FEHLHABER,

individually, Appellees

No. 86-85

502 So. 2d 33, 12 Fla. Law W. 303

BLUE BOOK CITATION FORM: 1987.FL.109

Date Filed: January 20, 1987

An Appeal from the Circuit Court for Dade County, Joseph J. Gersten, Judge.

APPELLATE PANEL:

Barkdull, Hubbart and Nesbitt, JJ.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARKDULL

In 1974 the deceased, Fred F. Fehlhaber, established an intervivos trust, subsequently thereto, his wife journeyed to California and sought a final judgment of legal separation, temporary support and determination of community property. In 1975 she secured from the California court a final judgment as to community property, determining that Mr. Fehlhaber owned substantial assets. She was awarded a money judgment in the amount of $9,947,355.37. She then proceeded to return to Florida and successfully established the California judgment in the United States District Court, Southern District of Florida. Fehlhaber v. Fehlhaber, 681 F.2d 1015 (5th Cir. 1982).

In 1974, prior to entry of the aforementioned judgment, the husband, Fred, acquired a divorce in Florida. Subsequent to the Florida divorce decree, Fred married Muriel and he made certain transfer to her. Thereafter, Fred died and his son Robert, who also acted as trustee of the aforementioned trust until October 1, 1984, she named as executor of his estate.

The appellant, as a judgment creditor in the estate, filed a claim against the specific assets in the trust and those transferred to the subsequent wife, Muriel, and also sought the appointment of an administrator ad litem of those assets. The executor objected to these claims (except that as a general creditor) which objections were sustained.

Thereafter, the appellant filed an original lawsuit in the circuit court and after 3 amendments it sounded in 5 counts which are as follows: Count I, a creditor's bill seeking to set aside alleged fraudulent transfer of assets into the revocable intervivos trust, Count II, an action to set aside fraudulent transfer of property to Muriel James Fehlhaber, the wife of the decedent at time of his death, Count III, an action seeking damages for civil theft pursuant to Ch. 812 Florida Statutes (1985), Count IV, sought damages for violation of the Florida Statutes (1985), Count IV, sought damages for violation of the Florida RICO Act pursuant to the provisions of Ch. 895 Florida Statutes (1985), Count V, sought damages and/or other appropriate relief alleging a civil conspiracy. The trial court dismissed the third amended complaint with prejudice and we affirm. Gilpen v. Bower, 152 Fla. 733, 12 So.2d 884 (1943); Finkelstein v. Southeast Bank, N.A., 490 So.2d 976 (Fla. 4th DCA 1986); Rosen v. Marlin, 486 So.2d 623 (Fla. 3d DCA 1986); Senfeld v. Bank of Nova Scotia Trust Company Cayman Limited, 450 So.2d 1157 (Fla. 3d DCA 1984); In Re Estate of Vettese, 421 So.2d 737 (Fla. 4th DCA 1982); Churruca v. Miami Jai-Alai, Inc., 338 So.2d 228 (Fla. 3d DCA 1976); United States v. Plotke, 725 F.2d 1303 (11th Cir. 1984); In Re Mortgageamerica Corporation, 714 F.2d 1266 (5th Cir. 1983).

At the time the appellant accepted the California money judgment, rather than pursue her community property interest in the specific property owned by Fred and commence further proceedings to enforce that judgment, she waived any further right to seek a claim against the specific assets of Fred and was relegated to status of a judgment creditor. Black v. Miller 219 So.2d 106 (Fla. 3d DCA 1969); Schulze v. Schulze, 121 Cal.App.2d 75, 262 P.2d 646 (1953); Steiner v. Rowley, 35 Cal. 2d 713, 221 P.2d 9 (1950). She possesses all rights that pertain to a judgment creditor to seek satisfaction of her money judgment, which among other things may include rights pursuant to chapter 56, Florida Statutes (1985) related to supplemental proceedings, but she does not have a right to seek relief against specific assets to the exclusion of other creditors or intervening rights. Therefore, the final judgment under review is affirmed.

Affirmed.

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