H. C. KIRK ET UX., APPELLANTS,
v.
HOWARD JAY EDINGER ET UX., ET AL., APPELLEES

Fla. 5th DCA | 1980-03-19
No. 78-1990/T4-205
SHARP, J., concurs., CROSS, J., concurs only in conclusion.
380 So. 2d 1336 Florida District Court of Appeal, Fifth District (1980) Caution
Cited by 20 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The Kirks appealed a judgment dismissing their action to set aside a property conveyance they alleged was fraudulent. The court affirmed the trial court's judgment, holding that while badges of fraud were present, the evidence supported the trial court's finding that the conveyance was made for valid consideration to satisfy an antecedent debt, not to defraud creditors.


Holding

The conveyance was not a fraudulent conveyance. Whether fraud is present in a particular transaction is determined by the particular facts surrounding the conveyance. The trial court's factual findings that there was consideration for the conveyance, the grantee had no knowledge of pending litigation, and the purpose was to satisfy an antecedent debt rather than defraud a creditor are presumed correct and will not be disturbed absent a showing of no competent evidence to sustain them.


Headnotes

[1] Whether a conveyance of property is fraudulent is determined by the particular facts surrounding the conveyance.

[2] A trial court's findings of fact come to an appellate court with a presumption of correctness and will not be disturbed absent a showing that there was no competent evide…

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“Not every conveyance of property by one against whom a suit is pending can be deemed fraudulent. Whether fraud is present in a particular transaction is to be determined by the particular facts surrounding the conveyance.”

Establishes the governing standard for fraudulent conveyance claims—fraud depends on specific factual circumstances, not merely the timing or status of pending litigation.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

On February 18, 1977, appellees Edinger conveyed real property in Brevard County to Mabel Fein Leibman (Mrs. Edinger's mother). The Kirks obtained a j…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
ORFINGER, Judge.

ORFINGER, Judge.

This was an action filed by appellant to set aside an alleged fraudulent conveyance of real property. The appeal is from a final judgment for defendants.

On April 18, 1977, appellants Kirk recovered a judgment against appellees Howard Jay Edinger and Rosalyn Edinger, his wife. They alleged that at the time that suit was instituted, the Edingers owned a certain parcel of real estate in Brevard County, and that they conveyed that property to appel-lee Mabel Fein Leibman on February 18, 1977, approximately two months before that final judgment was entered. They further alleged that appellee Leibman was Mrs. Edinger’s mother, that the conveyance was made for the specific purpose of defrauding the Kirks as judgment creditors and that it was not a bona fide purchase for value. Appellants asked that the conveyance be set aside and that the property be made subject to the lien of their judgment. After an answer was filed denying the allegations, the cause came on for non-jury trial before the court.

Appellants contend that the conveyance, under the circumstances found here, is patently a violation of Section 726.01, Florida Statutes (1975) and that the evidence clearly shows the presence of most, if not all of the “badges of fraud”. 15 Fla.Jur. Fraudulent Conveyances § 12 (1964). Undoubtedly, there was evidence before the trial court to sustain that position, but there was also evidence presented upon which the trial court could conclude that there was consideration for the conveyance, that the grantee had no knowledge of the pending lawsuit and that the purpose of the conveyance was not to defraud a creditor (there had been no judgment entered yet) but to satisfy an antecedent debt in approximately the same amount as the equity in the property.

Not every conveyance of property by one against whom a suit is pending can be deemed fraudulent. Whether fraud is present in a particular transaction is to be determined by the particular facts surrounding the conveyance. Stelle v. Dennis, 104 Fla. 384, 140 So. 194 (1932); McCrary v. Bobenhausen, 366 So. 2d 77 (Fla. 1st DCA 1979). We must also consider that the findings of the trial judge come to us with a presumption of correctness and will not be disturbed absent a showing that there was no competent evidence to sustain them. Turner v. Lorber, 360 So. 2d 101 (Fla. 3d DCA 1978). This is a close case, controlled by the factual circumstances surrounding the conveyance, and on the evidence presented could have been decided either way. The trial judge heard the evidence and observed the witnesses and we are without authority to substitute our conclusions for those of the trier of the facts. Bond v. Key, 141 Fla. 160, 192 So. 599 (1939).

We would be remiss if we did not point out that our review of this record was made more difficult by the fact that the final judgment herein contains no findings of fact by the trial judge. We conclude from the judgment that he resolved the conflicts in the evidence in favor of the defendants, so we affirm the judgment. But we must point out, as was done by our sister court in Turner v. Lorber, supra, that a trial judge should state his findings in a manner which reveals his consideration of each issue necessary to a resolution of the cause. This facilitates appellate review, and avoids our having to guess at the trial judge’s findings. The trial judge can dispel any doubts as to his findings and conclusions by stating them in the final judgment, and thus avoid the possibility that we will misconceive what he meant.

AFFIRMED.

SHARP, J., concurs.

CROSS, J., concurs only in conclusion.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Baker v. Baker, 394 So. 2d 465 (Fla. 4th DCA 1981)
    …hat of the trier of fact. On the contrary, the findings of the trial court come to this court clothed with a presumption of correctness and will not be disturbed absent a showing that there was no competent evidence to sustain them. Kirk v. Edinger, 380 So. 2d 1336 (Fla. 5th DCA 1980); Zutell v. Sunrise Oldsmobile, Inc., 252 So. 2d 822 (Fla. 1st DCA 1971). To modify or set aside a property settlement agreement, it is incumbent upon the party seeking to abrogate the agreement to allege and prove fraud, duress,…
  • Jacksonville Bulls Football, Ltd. v. Blatt, 535 So. 2d 626 (Fla. 3d DCA 1988)
    …ew Estates Co. v. Southerland, 114 Fla. 635, 154 So. 894 (1934); Stelle v. Dennis, 104 Fla. 384, 140 So. 194 (1932); Orlando Light Bulb Service, Inc. v. Laser Lighting and Electrical Supply, Inc., 523 So. 2d 740 (Fla. 5th DCA 1988); Kirk v. Edinger, 380 So. 2d 1336 (Fla. 5th DCA 1980); McCrary v. Bobenhausen, 366 So. 2d 77 (Fla. 1st DCA 1978). An owner of property has the right to dispose of it as he or she sees fit; the only restriction on that right is that no transfer may be made which injures or prejudices…
  • …89, 1290 (Fla. 3d DCA 1980). Consideration may also be given to factors other than those listed. See In re Miller, 188 B.R. 302, 305-06 (Bankr.M.D.Fla.1995). Courts may take into account the circumstances surrounding the conveyance. Kirk v. Edinger, 380 So. 2d 1336, 1337 (Fla. 5th DCA 1980). After receipt of this evidence, the burden shifts [*328] to the debtor or transferor to show the transfer was made without intent to “delay, hinder or defraud creditors.” See Mejia v. Ruiz, 985 So. 2d 1109, 1114 (Fla. 3d D…

Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw