In re: BARBARA DOREEN BOONE Debtor

Case No. 91-7470-8P7

United States Bankruptcy Court For The Middle District Of Florida, Tampa 
Division 

134 Bankr. 979, 1991 Bankr. Decision

November 29, 1991, Decided

Debtor's Attorney-Wesley R. Stacknik, Esquire  Trustee-Terry E. Smith
Attorney for Trustee-Dennis LeVine, Esquire Assistant U. S. Trustee

PASKAY

{Bankr. 980}  

ORDER ON OBJECTION TO CLAIM OF EXEMPTIONS 

THIS IS a Chapter 7 liquidation. The matter under consideration is a 
challenge by Terry Smith (Trustee), the Trustee of the estate, of the 
Debtor's claim to exempt certain real property and also certain personal 
property scheduled by the Debtor and valued at $ 995.00. 

The facts relevant to the resolution of the issues raised by the Trustee's 
objection are without dispute and appear from the record and from documents 
offered and admitted into evidence, and are as follows: 

On June 7, 1991, the Debtor filed her Voluntary Petition for Relief under 
Chapter 7. On the Schedules submitted in the Petition, the Debtor claimed 
on Schedule B-4 as exempt real property described in Schedule B-1 and all 
personal property described in Schedule B-2 (a). Both claims of exemption 
are based on, albeit not specified, Article X, Section 4 of the Florida 
Constitution which exempts residence which qualifies as the Debtor's 
homestead and also personal property not to exceed in value $ 1,000.00. In 
due time, Terry Smith was appointed to serve as Trustee for the estate of 
the Debtor. On August 9, 1991, the Trustee filed an Objection to the 
Debtor's Claim of Exemption. The Objection was based on the contention 
first, that the Debtor has undervalued the personal property claimed by $ 
1,050, contending that the property has a fair market value of $ 2,050. In 
addition, the Trustee contended that the property located at 5001 Valencia 
Lane East, Palm Harbor, Florida cannot be claimed by the Debtor as 
homestead first, because the Debtor is not a citizen of the United States; 
second, "she is in violation of the immigration law" (sic); and third, the 
house is not the Debtor's permanent residence. On August 21, 1991 the 
Debtor filed a Response to the Trustee's Objection and which she conceded 
that she is not a citizen of the United States, contended however, that she 
is a permanent resident of the State of Florida, and that she has a valid 
social security number, is legally employed in the United States and that 
she intends to remain a permanent resident in the State of Florida and 
resides on the property claimed as her homestead.  

It is undisputed that the Debtor is a Canadian citizen and at the time of 
her arrival in the United State she was married to Paul D. Boone. Mr. Boone 
entered the United States on an E-2 visa which was issued to him and had an 
original expiration date of 1990. The Debtor and her then husband filed an 
application to extend their E-2 visa in December, 1990. The E-2 visa issued 
to Mr. and Mrs. Boone is pursuant to a provision of the immigration laws of 
the United States which provides that citizens of a treaty country may 
temporarily enter the United States to be employed by a treaty-qualified 
company. 8 CFR Section 274(a)12(b)(5). It appears that Mr. Boone obtained 
his E-2 visa for the purpose of setting up a business in the United States 
known as P & B Enterprises, dba Hub Suzuki and the Debtor obtained her visa 
only as the wife of the visa applicant, Paul Boone. It is without dispute 
that on December 18, 1990 the Debtor obtained a divorce from her husband 
thus her legal right to remain in the United States was lost since it 
depended solely on the E-2 visa issued to her former husband. Accordingly, 
following her divorce and continued to date, the Debtor no longer has any 
legal right to remain in the United States and to continue to work. 
Moreover, P & B Enterprises, the business founded by her former husband, 
ceased to do business having been evicted from the premises by the landlord 
and the Debtor no longer has any connection with P & B Enterprises and is 
currently employed by a nontreaty-qualified company. Based on the 
foregoing, the Debtor failed to maintain her status under the original E-2 
visa. 8 CFR Section 214.2(e); 8 USC Section 1251(a)(9). For this reason, 
she lost her right to permanently remain in the United States. There is 
nothing in this record to indicate that the Debtor followed the procedure 
for transfer of her status pursuant to 8 CFR Section 245.1 and 248. Be that 
as it may, it is clear that she cannot apply for a conversion or transfer 
of her status for the simple reason that the first requirement to change 
the status under applicable law is that the applicant must have been 
present in the United States on or before June 1, 1978. Both the Debtor and 
her then husband did not arrive in the United States until 1990.    

The protection of homestead was established by the Constitution of this 
State was established to preserve a home where the family may be sheltered 
and live beyond the reach of economic misfortune. Bigelow v. Dunphe, 143 
Fla. 603, 197 So. 328 (1940) cert. den. 144 Fla. 330, 198 So. 13. One of 
the requirements of the Constitution is to establish the homestead 
character of the property that the owner must permanently reside in the 
State. This Court was called upon to consider the identical question in In 
re Matter of Cooke, 1 Bankr. 537 (1979). In Cooke, this Court found that 
the Debtor was a non-immigrant alien in Florida without a permanent visa 
thus, legally incapable to form the necessary intent to remain permanently 
in Florida. Therefore, the Debtor was not entitled to obtain the homestead 
exemption promised by Article X of the Florida Constitution. The decision 
of this Court was affirmed by the District Court and the Fifth Circuit 
Court of Appeals, which, after obtaining an advisory opinion from the 
Supreme Court of this State, held that because of the status of Cooke as a 
non-immigrant alien whose stay was temporary, precluded him to claim his 
residence as homestead located in the United States. This Court is 
satisfied that the principles announced by this Court in Cooke, and by the 
Fifth Circuit are equally applicable in this case and therefore, the 
Debtor, since she is unable to form an intent to legally remain permanently 
in the United States, cannot claim her residence as homestead, thus exempt, 
pursuant to Section 4, Article X of the Florida Constitution.   

This leaves for consideration the last contention of the Debtor which is 
based on the proposition that to apply her exemption claim under the 
Florida Constitution in the manner set forth in Cooke would violate her 
equal protection rights under the Federal Constitution. This proposition is 
equally without merit. First, to require a permanency of residence in order 
to claim homestead of residence is not based on alien status vel non of the 
claimant. This provision applies equally to all aliens and citizens of 
other states of the Union and clearly if a citizen from another state who 
moves to Florida temporarily and purchases real estate will not be 
permitted to claim the property as homestead unless there is evidence in 
the record to support that he intended to establish a permanent residence 
in this State. On the other hand, there is no question that the resident 
alien whose status is no longer temporary but permanent would be entitled 
to claim his or her residence as homestead provided the property would 
otherwise qualify as homestead under the applicable laws of this State.  

The identical argument was also considered in Cooke where the Fifth Circuit 
held "since we agree with the Supreme Court of Florida that the Appellant, 
a tourist, cannot legally formulate the intent to make his residence his 
family's permanent place of residence, we need not decide whether Florida 
may constitutionally exclude all foreigners from the benefits of its 
homestead laws." 683 F.2d at 131. In Juarrero v. McNayr, 157 So. 2d 79 
(Fla. 1963), the Florida Supreme Court held that one cannot complain that 
he has been denied due process of equal protection if every other person 
within a reasonable classification to which he belongs is treated in the 
same manner. In the present instance, in rejecting the Debtor's claim of 
homestead exemption does not treat her different than it would any other 
alien whose presence in the United States is temporary as a matter of law 
and who under the controlling provisions {Bankr. 982} of the immigration 
laws of the United States is legally unable to form the intent to 
permanently reside in the United States.   

Based upon the foregoing, it is 

ORDERED, ADJUDGED AND DECREED that the Trustee's Objection to Claims of 
Exemption is found to be well taken and is hereby sustained and the Claims 
of Exemption is disallowed. It is further 

ORDERED, ADJUDGED AND DECREED that the property claimed as exempt shall be 
property of the estate and subject to administration by the Trustee. 

DONE AND ORDERED at Tampa, Florida, on the 29th day of November, 1991 

ALEXANDER L. PASKAY 
Chief Bankruptcy Judge