ROBERT FELDMAN, etc. v. JEFFREY SCHOCKET

• Court: District Court of Appeal of Florida
• Decided: September 21, 2022
• Docket: 21-1509
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed September 21, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1509 Lower Tribunal No. 16-141-P ________________

Robert Feldman, etc., Appellant,

vs.

Jeffrey Schocket, Appellee.

An appeal from the Circuit Court for Monroe County, Luis Garcia, Judge.

Annesser Armenteros, PLLC, John W. Annesser, and Megan Conkey Gonzalez, for appellant.

Tom Woods P.A., and Tom Woods, for appellee.

Before FERNANDEZ, C.J., and EMAS, and MILLER, JJ.

MILLER, J. Appellant, Robert Feldman, acting in his capacity as Personal

Representative of the Estate of Patricia Silver, challenges a final judgment

granting appellee, Jeffrey Schocket, Silver’s widower, homestead rights

pursuant to a petition for declaratory relief. Silver died testate while married

to Schocket. In her will, she directed that her homestead be sold and the

proceeds placed in the residue for distribution along with her other assets.

The trial court determined that two mortgage waivers and a spousal waiver

were ineffective to override the constitutional homestead protection afforded

to Schocket that otherwise prevented Silver from directing the sale of the

property. Discerning no error, we affirm.

BACKGROUND

Schocket and Silver were married in 2003. During their marriage, they

resided together at 208 Buttonwood Lane, Islamorada, Florida. In 2015,

Silver mortgaged the Islamorada property to obtain a loan to fund her law

firm, the Silver Law Firm, P.A. Schocket signed two mortgages. Both

mortgages contained identical waivers, providing, in relevant part:

“Mortgagor, [Schocket], is joining in the execution of this mortgage for the

sole purpose of waiving his or her homestead rights under Article X, Section

4 of the Florida Constitution, and shall not be bound by the terms, conditions

2 or warranties contained in this instrument.” The mortgages were notarized,

witnessed by two persons, and duly recorded.

On October 26, 2016, Silver passed away. Silver’s will, executed two

days before her death, provided that the Islamorada property “shall be sold

by [Silver’s] executor, the proceeds of which . . . shall become part of

[Silver’s] residuary estate. Until such time as the property is sold, my

husband Jeffrey Schocket may reside in the property.”

Schocket continued to reside at the property, and on November 17,

2016, Feldman presented him with a spousal waiver. Schocket signed the

waiver in the presence of two attesting witnesses, but the document was not

notarized or recorded. According to Schocket, Feldman informed him that

signing the document would enable the Estate to “pay the bills to maintain

the house” and allow Feldman to serve as executor. Schocket attested he

“didn’t read the document” and “wasn’t aware of [his] rights or interest in the

property at that time.”

The spousal waiver provided:

I, JEFFREY SCHOCKET, herby [sic] waive, any and all right, title, and interest I have in the property . . . . Specifically . . . any rights, title and/or interest that I may have to claim that the aforementioned property is exempt and/or excluded from my wife, Patricia M. Silver’s estate pursuant to Florida Statute §732.401 or Florida Statute §732.4015.

3 On December 30, 2016, Feldman was appointed Personal

Representative of the Estate. Although Schocket remained in possession of

the property, the Estate maintained the property and satisfied all related

expenses.

In September of 2017, the property sustained damage during

Hurricane Irma, rendering it uninhabitable. The following month, Feldman

notified Schocket he had procured a potential buyer for the property.

Schocket then filed suit seeking a determination that the property was

homestead property. In response, Feldman filed an answer and raised the

following affirmative defenses: (1) set-off; (2) waiver; (3) laches; (4) failure to

mitigate damages; and (5) estoppel.

Schocket sought summary judgment under Florida’s “old” summary

judgment rule. See Fla. R. Civ. P. 1.510(c) (2020) (“The judgment sought

must be rendered immediately if the pleadings and summary judgment

evidence on file show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.”). The

court convened a hearing and granted the motion, in part. In the ensuing

order, the court found: (1) the 2015 mortgage waivers were limited to the

mortgage agreement; and (2) the 2016 spousal waiver was procedurally

4 noncompliant and ineffective because, upon Silver’s death, Schocket

acquired a vested fee simple interest in the property.

Schocket subsequently filed a renewed motion under the “new”

summary judgment rule, seeking to extinguish Feldman’s affirmative

defenses. See Fla. R. Civ. P. 1.510(a) (2022) (“The court shall grant

summary judgment if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of

law.”); In re Amends. to Fla. Rule of Civ. Proc. 1.510, 309 So. 3d 192, 192

(Fla. 2020) (explaining transition to federal summary judgment standard,

effective May 1, 2021). The trial court granted the motion, and the instant

appeal ensued.

STANDARD OF REVIEW

We review a grant of summary judgment de novo. Volusia Cnty. v.

Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000). In this

case, the parameters of our review are further informed by both Florida’s

“old” and “new” summary judgment standards. Pursuant to the old standard,

summary judgment was proper “if there [was] no genuine issue of material

fact and if the moving party [was] entitled to a judgment as a matter of law.”

Id. In accordance with this test, “the existence of any competent evidence

creating an issue of fact, however credible or incredible, substantial or trivial,

5 stop[ped] the inquiry and preclude[d] summary judgment, so long as the

‘slightest doubt’ [was] raised.” Bruce J. Berman & Peter D. Webster,

Berman’s Florida Civil Procedure § 1.510:5 (2020 ed.). Under the new

standard, which mirrors its federal counterpart and aims “to improve the

fairness and efficiency of Florida’s civil justice system, to relieve parties from

the expense and burdens of meritless litigation, and to save the work of juries

for cases where there are real factual disputes that need resolution,” we view

the evidence through a slightly different lens. In re Amends. to Fla. Rule of

Civ. Proc. 1.510, 309 So. 3d at 194; see Fla. R. Civ. P. 1.510(a) (2022). The

amended rule states that summary judgment is appropriate where “there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fla. R. Civ. P. 1.510(a) (2022). Accordingly,

“the correct test for the existence of a genuine factual dispute is whether ‘the

evidence is such that a reasonable jury could return a verdict for the

nonmoving party.’” In re Amends. to Fla. Rule of Civ. Proc. 1.510, 317 So.

3d 72, 75 (Fla. 2021) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)). In other words, “[i]f the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Anderson, 477

U.S. at 249–50 (citations omitted).

6 ANALYSIS

Resolution of this dispute is governed by a convergence of the

constitutional and statutory provisions that govern the unique homestead

protections afforded under Florida law. “The first appearance of homestead

provisions was in the 1868 Florida Constitution, and it was intended to

prevent wholesale loss of homes and farms after the conclusion of the Civil

War.” Tae Kelley Bronner & Rohan Kelley, Homestead and Exempt

Personal Property, in Prac. Under Fla. Prob. Code § 19.3 (10th ed. 2020).

Given their unique characteristics, Florida’s homestead laws have been

repeatedly characterized as “our legal chameleon.” See generally Harold B.

Crosby & George John Miller, Our Legal Chameleon, the Florida Homestead

Exemption I-III, 2 U. Fla. L. Rev. 12 (1949). Homestead protection “will be

given different meanings depending on the context in which it is used.” S.

Walls, Inc. v. Stilwell Corp., 810 So. 2d 566, 568–69 (Fla. 5th DCA 2002);

see Bowers v. Mozingo, 399 So. 2d 492, 493 (Fla. 3d DCA 1981); Willens v.

Garcia, 53 So. 3d 1113, 1119 (Fla. 3d DCA 2011).

The Florida Constitution extends three distinct protections to

homestead property. See art. X, § 4, Fla. Const. “First, a clause . . . provides

homesteads with an exemption from taxes. Second, the homestead

provision protects the homestead from forced sale by creditors. Third, the

7 homestead provision delineates the restrictions a homestead owner faces

when attempting to alienate or devise the homestead property.” Snyder v.

Davis, 699 So. 2d 999, 1001–02 (Fla. 1997) (footnotes omitted). This case

involves the third protection.

Article X, section 4(c) of the Florida Constitution provides, in pertinent

part:

The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse.

See also § 732.401(1), Fla. Stat. (2022) (“If not devised as authorized by law

and the constitution, the homestead shall descend in the same manner as

other intestate property; but if the decedent is survived by a spouse and one

or more descendants, the surviving spouse shall take a life estate in the

homestead, with a vested remainder to the descendants in being at the time

of the decedent’s death per stirpes.”). By preserving the homestead status

of the property, this provision “is designed to protect two classes of persons[,]

. . . surviving spouses and minor children.” Wadsworth v. First Union Nat’l

Bank of Fla., 564 So. 2d 634, 636 (Fla. 5th DCA 1990).

8 “[T]he homestead law is to be liberally construed for the benefit of the

surviving spouse it was designed to protect.” In re Est. of Donovan, 550 So.

2d 37, 39 (Fla. 2d DCA 1989). Consequently, ordinarily, “equitable principles

cannot operate to nullify a homestead interest.” Rutherford v. Gascon, 679

So. 2d 329, 331 (Fla. 2d DCA 1996). Such an interest, however, may be

waived. Waiver has been recognized by both legislative enactment and

judicial imprimatur. See § 732.702(1), Fla. Stat. (2022); see also City Nat’l

Bank of Fla. v. Tescher, 578 So. 2d 701, 703 (Fla. 1991) (“[W]hen a decedent

is survived by no minor children and the surviving spouse has waived

homestead rights, there is no constitutional restriction on devising

homestead property.”); Hartwell v. Blasingame, 564 So. 2d 543, 545 (Fla. 2d

DCA 1990) (“[W]e see no reason for the state to prohibit [the surviving

spouse] from validly waiving her homestead rights at the inception of the

marital relationship which invoked those rights.”); In re Amend. to the Rules

Regulating the Fla. Bar—Rule 4-1.5(f)(4)(B) of the Rules of Pro. Conduct,

939 So. 2d 1032, 1038 (Fla. 2006) (“Florida’s highly valued constitutional

homestead protection is subject to waiver.”).

“In order to find that a survivor spouse has waived/relinquished

homestead protection, evidence must demonstrate the survivor’s intent to

waive the constitutional and statutory claim to homestead property.”

9 Rutherford, 679 So. 2d at 331. In this context, waiver is statutorily

circumscribed.

Section 732.702(1), Florida Statutes, authorizes a spouse to waive

homestead rights “before or after marriage, by a written contract, agreement,

or waiver, signed by the waiving party in the presence of two subscribing

witnesses.” In such circumstances, “[u]nless the waiver provides to the

contrary, a waiver of ‘all rights,’ or equivalent language,” may constitute a

waiver of all homestead rights that would otherwise inure to the benefit of the

waiving spouse. Id.; see also § 732.7025(1), Fla. Stat. (2022) (“A spouse

waives his or her rights as a surviving spouse with respect to the devise

restrictions under [section] 4(c), Art. X of the State Constitution if the

following or substantially similar language is included in a deed: ‘By

executing or joining this deed, I intend to waive homestead rights that would

otherwise prevent my spouse from devising the homestead property

described in this deed to someone other than me.’”). If the waiver is

executed after marriage, each spouse is additionally required to make a fair

disclosure to the other of his or her estate. § 732.702(2), Fla. Stat. Notably,

the statute contains no provision for effectuating waiver after death.

10 Section 739.104, Florida Statutes (2022), further allows a beneficiary

to disclaim an interest in property. Pursuant to the statute, any disclaimer

must:

(i) be in writing, (ii) declare that the writing is a disclaimer, (iii) describe the interest or power disclaimed, (iv) be signed by the person making the disclaimer, (v) be witnessed and acknowledged in the manner provided for by deeds of real estate, and (vi) be delivered in the manner provided in section 739.301 of the Florida Statutes.

Lee v. Lee, 263 So. 3d 826, 827 (Fla. 3d DCA 2019); see § 739.104(3), Fla.

Stat. Like a deed, the disclaimer must further comply with chapter 695,

Florida Statutes, which states:

An acknowledgment or a proof may be taken, administered, or made within this state by or before a judge, clerk, or deputy clerk of any court; a United States commissioner or magistrate; or any notary public or civil-law notary of this state, and the certificate of acknowledgment or proof must be under the seal of the court or officer, as the case may be.

§ 695.03(1), Fla. Stat. (2022). Against this background, we examine the

instant case.

Here, all three waivers were executed after marriage. Yet, the

undisputed evidence established that Schocket was not provided with a fair

disclosure of Silver’s estate. This omission runs afoul of the applicable

statutory scheme. See § 732.702(2), Fla. Stat. Further, nowhere do the

mortgage waivers reference the constitutional prohibition on devise in the

11 event a decedent is survived by a spouse or minor child. Instead, by their

plain language, the mortgage waivers were executed for a qualified purpose.

Without Schocket’s signature, the mortgages would not constitute a valid lien

on the property. See Pitts v. Pastore, 561 So. 2d 297, 301 (Fla. 2d DCA

1990). Thus, his signature was necessary to facilitate the constitutionally

permissible purpose of “alienat[ing] the homestead by mortgage.” See art.

X, § 4(c), Fla. Const.

Further, in Chames v. DeMayo, 972 So. 2d 850 (Fla. 2007), echoing

the words of this court, Justice Cantero sagaciously cautioned against

enforcing boilerplate homestead waivers buried within documents of other

legal significance:

[T]he waiver of the homestead exemption will become an everyday part of contract language for everything from the hiring of counsel to purchasing cellular telephone services. The average citizen, who is of course charged with reading the contracts he or she signs . . . often fails to read or understand boilerplate language detailed in consumer purchase contracts, language which the contracts themselves often permit to be modified upon no more than notification in a monthly statement or bill. . . . [S]uch consumers may lose their homes because of a “voluntary divestiture” of their homestead rights for nothing more than failure to pay a telephone bill. This inevitably will result in whittling away this century old constitutional exemption until it becomes little more than a distant memory.

Id. at 862 (alterations in original) (quoting DeMayo v. Chames, 30 Fla. L.

Weekly D2692, D2695–96 (Fla. 3d DCA Nov. 30, 2005) (Wells, J.,

12 dissenting)). In this case, the qualified mortgage waivers were buried within

documents of other legal significance. Under these circumstances, we

conclude, as did the trial court, that the mortgage waivers are procedurally

deficient and insufficient to “evince an intent by [Schocket] to waive [his]

homestead rights.” Rutherford, 679 So. 2d at 330.

Although the post-death spousal waiver contains more expansive

language than the mortgage waivers, as indicated previously, it, too, fails for

a myriad of reasons. First, as previously noted, despite the fact that it was

executed after marriage, it was not accompanied by fair disclosure of Silver’s

estate. See § 732.702(2), Fla. Stat. Second, section 732.702(1), Florida

Statutes, anticipates that a party will contract with “a present or prospective

spouse” or in anticipation of “separation, dissolution of marriage, or divorce.”

The statute does not contemplate contracting with a deceased spouse.

Third, in placing their imprimatur upon waiver, courts have embraced the

legal fiction that a waiver executed before or during marriage is the “legal

equivalent of the prior death of the [spouse].” Jacobs v. Jacobs, 633 So. 2d

30, 32 (Fla. 5th DCA 1994) (quoting Wadsworth, 564 So. 2d at 635); see

also In re Slawson’s Est., 41 So. 2d 324, 326 (Fla. 1949). This legal fiction

removes the constitutional impediment to devising the homestead property.

See Jacobs, 633 So. 2d at 32; Wadsworth, 564 So. 2d at 635. In the absence

13 of a waiver, however, the property passes by operation of law to the surviving

spouse upon the death of the decedent. See Rutherford, 679 So. 2d at 331.

Here, because the mortgage waivers failed, Schocket’s property interest

vested upon Silver’s death. Thus, the post-death spousal waiver was too

little, too late.

Feldman alternatively argues that the spousal waiver should be

construed as a disclaimer. This argument fails on both procedural and

substantive grounds.

Critically, the waiver is not statutorily compliant. It does not purport to

be a disclaimer, it was not acknowledged before “a judge, clerk, or deputy

clerk of any court; a United States commissioner or magistrate; or any notary

public or civil-law notary of this state,” and it was not recorded. § 695.03(1),

Fla. Stat.; see § 739.104(3), Fla. Stat.; § 695.26(1), Fla. Stat. (2022). The

disclaimer statute makes no provision for partial compliance.

Notwithstanding these deficiencies, Feldman relies upon Youngelson

v. Youngelson’s Estate, 114 So. 2d 642 (Fla. 3d DCA 1959), for the

proposition that the spousal waiver is enforceable under our precedent. In

Youngelson, the husband and wife executed a post-nuptial agreement. Id.

at 643. The wife agreed, upon her husband’s death, to release “all rights

and claims in and to the Estate[,] . . . including rights of dower . . . [and]

14 homestead rights.” Id. Following the death of her husband, the wife entered

into a settlement agreement with the personal representative and other heirs,

affirming her release of any rights in the estate. Id. Shortly thereafter, she

filed a petition to void the settlement agreement and sought to have the

property declared as homestead property. Id. The trial court denied relief.

Id.

This court affirmed on appeal, finding that the settlement agreement

was presumptively valid and could only be set aside upon a showing of fraud

or overreaching. Id. at 644. With regard to relinquishing homestead

protection, the court noted “that a prohibition would not be in keeping with

the best interest of litigants seeking to settle estates,” and, while “courts do

not favor a release of homestead rights[,] . . . . homestead rights [can] be

legally dealt with by a widow in whom they have vested.” Id.

Although the holding in Youngelson remains undisturbed, the instant

case is distinguishable. There was no post-death settlement here, and,

perhaps more importantly, long after Youngelson was decided, the

legislature exercised its prerogative to enact chapter 739 of the Florida

Statutes. This statute now represents the exclusive means by which an

individual may disclaim an interest in property. § 739.103, Fla. Stat. (2022)

(“[T]his chapter is the exclusive means by which a disclaimer may be made

15 under Florida law.”); see also Lee, 263 So. 3d at 827 (“The Florida legislature

has codified the requirements for disclaimer of property in chapter 739, the

Florida Uniform Disclaimer of Property Interests Act.”). Consequently,

Youngelson cannot serve as a conduit for reviving a statutorily noncompliant

disclaimer.

Accordingly, we conclude the trial court correctly determined the

waivers were insufficient to establish Schocket intended to relinquish his

homestead protection. Thus, we affirm the orders under review. 1

Affirmed.

1 We find no merit to the contention that the two-year delay in the filing of the petition precludes a determination of homestead on the ground of laches, and the record supports the conclusion that the affirmative defense of set-off has been rendered moot by a post-judgment settlement agreement. We summarily affirm the decision on the remaining affirmative defenses.