DAVID KORNBERG, APPELLANT,
v.
ABRAHAM KRUPKA, APPELLEE
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A judgment debtor appealed an order in supplementary proceedings that subjected real and personal property held as tenancies by the entireties with his wife to execution on his judgment debt. The court reversed, holding that the debtor's wife, whose property interests would be affected, must be impleaded as a party to the proceedings and afforded due process protections, rather than merely subpoenaed as a witness.
The court reversed the order, holding that when a party's property rights will or may be affected by supplementary proceedings, that party must be impleaded as a party to the proceedings and afforded an opportunity to be heard on the issue of their property rights. A property interest held as a tenancy by the entireties cannot be reached to satisfy the debt of only one party without according due process to the other party holding the interest.
“a property interest such as a tenancy by the entireties cannot, prima facie, be reached to satisfy the original debt or obligation of either party under the laws of this state”
Establishes the fundamental principle that tenancy by the entireties property is protected from creditors of only one spouse
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Join FLexlaw to unlock all legal intelligenceAppellant Kornberg was a judgment debtor against whom execution was issued and returned unsatisfied. Supplementary proceedings were initiated against …
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The appellant, a judgment debtor, appeals from an order in supplementary proceedings which adjudged that certain improved real property as well as personal properties held in the names of the judgment debtor and his wife, were subject to execution and sale under the appellee’s judgment.
The appellant has raised four points upon which he relies for a reversal; however, we feel it necessary to discuss only one, i. e., whether or not the appellant’s wife, whose interests in certain real and personal property with her husband, the judgment debtor, were as estates by the entireties, had been accorded due process.
The order appealed from indicates that the court heard the testimony of the appellant and his wife, but nowhere does the order or record indicate that the wife was impleaded as a party to the proceedings, or that she was served with a copy of the affidavit initiating the supplementary proceedings.
In Meyer v. Faust, Fla.1955, 83 So. 2d 847, the identical situation appears to have existed as in the present case. In the Meyer case, a judgment was returned against the husband, execution thereon issued and returned unsatisfied, and an affidavit initiating supplementary proceedings against the husband was filed. The wife was subpoenaed as a witness to be examined concerning the property of her husband, and it developed that certain funds of the husband had been transferred to the wife and subsequently invested in real property held as a tenancy by the entireties. The trial judge there held that the transfer was fraudulent and void as to the judgment creditor, and authorized a levy of execution against the property held as a tenancy by entireties. The Supreme Court of Florida, in reversing, pointed out that a property interest such as a tenancy by the entireties cannot, prima facie, be reached to satisfy the original debt or obligation of either party under the laws of this state. See Hunt v. Covington, 145 Fla. 706, 200 So. 76. The court further held that unless a party, whose rights may be affected and who was not originally a party to the pro*792ceedings, be impleaded and máde a party thereto and afforded a full right to be heard, such party would not have been accorded due process,
Inasmuch as the wife was not a party to tire original proceedings and had not been impleaded as a party, and accorded an opportunity to be heard, the order appealed from cannot be sustained. We do not infer that a wife cannot be interrogated in supplementary proceedings regarding the location and extent of her husband’s assets, but when her property rights will or may be affected by the supplementary proceedings, she must be impleaded as a party and afforded an opportunity to be heard upon the issue of her property rights. See §§ 5S.S2-5S.S7, Fla.Stat., F.S.A.
Accordingly, the judgment appealed from is reversed.
PEARSON and CARROLL, CHAS., JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Crawford v. United States Fid. & Guar. Co., 139 So. 2d 500 (Fla. 1st DCA 1962)…157 Fla. 300, 25 So. 2d 859 (1946). . Lerner v. Lerner, 113 So. 2d 212 (Fla.App.1959). . Ryan’s Furniture Exchange v. McNair, 120 Fla. 109, 162 So. 483, 487, 488 (1935). .Meyer v. Faust, 83 So. 2d 847, 848 (Fla.1956); See also Kornberg v. Krupka, 118 So. 2d 790 (Fla.App.1960). . Hunt v. Covington, 145 Fla. 706, 200 So. 76 (1941). . Riley v. Fatt, 47 So. 2d 769 (Fla.1950).…
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State of Fla. ex rel. Beatrice O'Dare v. Honorable John J. Kehoe, 189 So. 2d 268 (Fla. 3d DCA 1966)…in proceedings supplementary to execution, unless such third party is first fully impleaded. Ryans Furniture Exchange v. McNair, 120 Fla. 109, 162 So. 483 (1935). See also Meyer v. Faust, Fla. 1955, 83 So. 2d 847, Kornberg v. Krupka, Fla.App. 1960, 118 So. 2d 790; Tomayko v. Thomas, Fla.App.1962, 143 So. 2d 227. It has been determined by the District Court of Appeal, Second District, in Rehrer v. Weeks, Fla.App.1958, 106 So. 2d 865, that where there is no dispute as to the jurisdictional facts, prohibition…
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Ellis Sarasota Bank & Tr. Co. v. Nevins, 409 So. 2d 178 (Fla. 2d DCA 1982)…eyer v. Faust, 83 So. 2d 847 (Fla.1955); Hunt v. Covington, 145 Fla. 706, 200 So. 76 (Fla.1941); Art Advertising Co. v. Associated Press, 340 So. 2d 1291 (Fla. 2d DCA 1977); Balding v. Fleisher, 279 So. 2d 883 (Fla. 3d DCA 1973); Kornberg v. Krupka, 118 So. 2d 790 (Fla. 3d DCA 1960). Here, the record is silent as to whether appellant’s motion to implead appellee’s wife was ruled on. Accordingly, we reverse the order of the trial court and remand with instructions to reach the issues of the proper joinder of…
Authorities Cited
- Hunt v. Mrs. Nannie L. Covington, 145 Fla. 706 (Fla. 1941)
- Hedwig Meyer v. Faust, 83 So. 2d 847 (Fla. 1955)