BRENDAN HURLEY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF HARRY G. VEON

v.

SHIRLEY ANN VEON

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 5D2021-2409 LT Case No. 2010-DR-504 _____________________________

BRENDAN HURLEY, as Personal Representative of the Estate of Harry G. Veon,

Appellant,

v.

SHIRLEY ANN VEON,

Appellee. _____________________________

On appeal from the Circuit Court for Seminole County. Susan Stacy, Judge.

Samuel Alexander, of Alexander Appellate Law P.A., DeLand, for Appellant.

Nicholas A. Shannin, B.C.S. and Carol B. Shannin, of Shannin Law Firm, P.A., Orlando, for Appellee.

June 28, 2024

PRATT, J.

This is a timely appeal by the representative of the estate of Harry Veon (“Former Husband”) from a post-judgment final order granting Shirley Ann Veon (“Former Wife”) $788,595.53 under several provisions of a 2010 Marital Settlement Agreement (“MSA”). On appeal, Former Husband challenges the portions of

Former Husband asserts that none of these funds were, or could be characterized as, a distribution or dividend resulting from ownership in the AutoSoft Companies or any other business entity. Instead, he argues that the funds were income from his ownership of the Software, which is an intangible asset rather than a business entity. He also challenges the lower court’s award of attorney’s fees to Former Wife as a prevailing party.

I.

Former Husband and Former Wife married in 1967. They had a child named Brycen Veon. In 1988, during the marriage, Former Husband developed the Software for car dealership accounting. That same year, Former Husband created the first of the AutoSoft Companies—AutoSoft, Inc.—to sell the Software to car dealerships. At this time, Former Husband was the sole shareholder of AutoSoft, Inc. The company also did business under the name AutoSoft, International.

Throughout the next 15 years, operations of AutoSoft, Inc. continued, and some related business entities were created. Independent distributors and sales representatives of the Software created AutoSoft DMS, LLC. Brycen Veon created another entity—Orion Dealer Systems, Inc.—to collect royalties from the sales representatives. Former Husband was never a shareholder in either of these entities.

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In 2003, Former Husband began transferring his stock in AutoSoft, Inc. to Brycen Veon. By January 2010, all stock in the corporation had been transferred. Both Former Wife and Former Husband always “knew that Brycen Veon would eventually take over the company.”

In November 2010, Former Husband and Former Wife divorced, executing a Marital Settlement Agreement (“MSA”) that the court incorporated into the final judgment. The MSA included three provisions relevant to this appeal:

• Paragraph 3 indicates the parties’ agreement to waive any right to seek compensation from, or any interest in, the salary, income, or awards of the other in the future unless otherwise provided in the MSA.

• Paragraph 20 provides an exception to Paragraph 3. It recites that, as of the date of the MSA’s execution, Former Husband holds no legal or equitable ownership interest in the AutoSoft Companies, any of their subsidiaries, or any related or affiliated entity. The paragraph then grants Former Wife half of all sums Former Husband “receives or becomes entitled to receive” as “distribution[s], dividend[s], or any sums of money which could be characterized as distributions or dividends paid incident to” any legal or equitable ownership interest that Former Husband once held in the AutoSoft Companies, “any subsidiary[,] or any related or affiliated entity.”

• Paragraph 47 provides for prevailing party attorney’s fees in the event of future enforcement actions.

In 2018, Former Wife filed a post-judgment motion to set aside the MSA or, in the alternative, to enforce it. In that motion, she alleged that during their separation, Former Husband had fraudulently transferred his interest in the AutoSoft Companies; that Former Husband had “acquired substantial interests in the businesses . . . that would be indicative of his regained ownership interest”; and that Former Husband had failed to fully disclose

A two-day bench trial was held. Former Wife presented evidence of a 2014 federal lawsuit filed by Former Husband against AutoSoft, Inc. and Orion Dealer Systems, Inc., asserting an entitlement to $11.2 million in royalties from 2009 to 2012— significantly more than the approximate $2.7 million he had received. The case settled for $225,000 after attorney’s fees, in exchange for assignment of the Software’s copyright. Former Wife provided expert testimony that both the pre-suit $2.7 million income (or at least whatever portion of that income Former Husband received after execution of the MSA) and the $225,000 settlement amount fell under Paragraph 20 of the MSA, either as royalties or due to an ownership interest in the companies. Former Wife also demonstrated that Former Husband’s income was $2.4 million in 2007, $2.2 million in 2008, about $1 million in 2009, $122,000 in 2010, and slightly over $1 million each year in 2011 and 2012.

Former Wife also provided testimony from Brycen Veon’s deposition. Brycen’s testimony focused on Former Husband’s involvement in the AutoSoft Companies after the MSA. Brycen stated that Former Husband had no control over the day-to-day operations of AutoSoft, Inc. or Orion Dealer Systems, Inc., and he did not recall Former Husband having any power to give instructions about the handling of distributions and profits. In fact, Brycen directly testified that Former Husband did not have control and was not happy with the direction in which Brycen was taking the companies. Former Husband attempted to leverage his familiarity with the Software to get his way, but that caused a breakdown in Brycen’s and the companies’ relationship with Former Husband. Eventually, Brycen fired Former Husband from AutoSoft, Inc., and the companies transitioned to a new software against Former Husband’s will. Brycen later closed the companies down.

Former Husband provided undisputed evidence that AutoSoft, Inc. was the only AutoSoft-related company in which he ever possessed a legal ownership interest, and that he had

After trial, the court denied Former Wife’s motion to set aside the MSA, but it granted her enforcement request. The court concluded that after execution of the MSA, Former Husband retained a legal or equitable interest in the AutoSoft Companies that required him to split with Former Wife the monies he received from them. Following Former Husband’s motion for rehearing, the trial court amended the order to correct some calculations of the award. The trial court ultimately ordered Former Husband to pay over $600,000 in an award under Paragraph 20 for the monies he received after the MSA, nearly $100,000 of the settlement monies, about $3,000 related to a real estate ownership misrepresentation, and about $42,000 in prevailing party attorney’s fees and costs.

Former Husband has appealed, challenging each of the awards except the one stemming from the real estate ownership misrepresentation.

II.

“A marital settlement agreement is a contract.” Crawford v. Barker, 64 So. 3d 1246, 1251 (Fla. 2011). A trial court’s interpretation of a marital settlement agreement, like any other contract, is reviewed de novo. Taylor v. Taylor, 183 So. 3d 1121, 1122 (Fla. 5th DCA 2015). In a non-jury trial, findings of fact are reviewed for support by competent, substantial evidence, while legal rulings are reviewed de novo. Acoustic Innovations, Inc. v. Schafer, 976 So. 2d 1139, 1143 (Fla. 4th DCA 2008).

To recap, the trial court ordered three awards to Former Wife that are at issue in this appeal. First, Former Husband was ordered to pay one half of the monies received from the AutoSoft Companies in the years following the MSA. Second, Former Husband was ordered to pay one half of the monies received in the litigation settlement. Third, Former Husband was ordered to pay Former Wife’s attorney’s fees under a prevailing party provision of the MSA. We will discuss each of these three awards in turn.

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III.

It is undisputed that Former Husband received monies from the AutoSoft Companies after entering the MSA, but the parties disagree on the proper characterization of the funds. Former Husband asserts he had no legal or equitable ownership of the companies at any point after entering the MSA, so the funds cannot be characterized as distributions or dividends. Former Wife argues that Former Husband did in fact possess ownership— either legal or equitable—of the AutoSoft Companies, and that the funds he received can be characterized as dividends or distributions.

A.

Former Husband supports his claim that he had no legal ownership of the AutoSoft Companies after the MSA with undisputed evidence that he transferred the last of his stock in AutoSoft, Inc.—the only AutoSoft-related entity in which he ever had an ownership interest—to Brycen Veon in January of 2010, and he never reacquired stock in the company. This was supported by Former Husband’s testimony, Brycen Veon’s testimony, and even Former Wife’s expert’s testimony. Rather than dispute Former Husband’s stock transfer, Former Wife instead argues that he retained ownership by virtue of his ownership of the Software, and by retaining direct or de facto control over AutoSoft, Inc. until 2012.

Former Wife’s arguments go to equitable ownership, not legal ownership. Former Husband completely divested his legal title to AutoSoft, Inc. when he transferred the last of his shares to Brycen Veon in January 2010. Former Husband correctly points out that Former Wife conflates legal ownership of the Software with legal ownership of the Companies. Under the plain terms of the MSA, however, it is Former Husband’s ownership of the Companies, any of their subsidiaries, or “any related or affiliated entity”—not his ownership of an asset—that counts. The Software is an asset, not a company, subsidiary, or other business entity, so Former Husband’s ownership of the Software does not implicate Paragraph 20 of the MSA. Thus, we turn to the question whether

B.

Both we and the Florida Supreme Court have recognized the concept of equitable ownership of real property in the context of ad valorem taxation. See, e.g., Leon Cnty. Educ. Facilities Auth. v. Hartsfield, 698 So. 2d 526 (Fla. 1997); First Union Nat’l Bank of Fla. v. Ford, 636 So. 2d 523 (Fla. 5th DCA 1993). This case, however, presents a question regarding equitable ownership of a business.

Both parties point to In re Trujillo, 626 B.R. 59 (Bankr. S.D. Fla. 2019), as the starting point for the equitable ownership analysis in this context. There, the bankruptcy court noted that, “Florida law long has recognized equitable or beneficial interests as a form of property ownership,” and “[t]his general rule applies even to ownership interests in intangible things, such as corporate forms or trust arrangements.” Id. at 73–74 (citing Acoustic Innovations, 976 So. 2d at 1142, 1144–45; Brevard Cnty. v. Ramsey, 658 So. 2d 1190, 1196 (Fla. 5th DCA 1995)). It went on to note that, “Florida law has no clear standard for determining whether someone is the equitable or beneficial owner of assets . . . nominally owned by another,” and cases are “fact specific.” Id. at 74 (citing Russell v. Se. Housing, LLC, 162 So. 3d 262, 268–69 (Fla. 3d DCA 2015); Towerhouse Condo., Inc. v. Millman, 475 So. 2d 674 (Fla. 1985)). According to the bankruptcy court, the “determinative facts often overlap with indicia germane to nominee cases.” Id. Those indicia are: “(i) control over the nominee and the nominee’s assets, (ii) family relationships, and (iii) use of [the] nominee’s assets.” Id. (citing Shades Ridge Holding Co. v. United States, 888 F. 2d 725, 729 (11th Cir. 1989)). According to the bankruptcy court, “[t]he most critical factor usually is control,” id. (citing Shades Ridge, 888 F. 2d at 728; Christensen v. Bowen, 140 So. 3d 498, 501 (Fla. 2014)), and “[a] second factor is who is receiving the benefits of the asset,” id. (citing In re Bellassai, 451 B.R. 594, 601 (Bankr. S.D. Fla. 2011)).

The parties cite several cases as examples of this analytical framework in action. In one bankruptcy case, the former legal

We agree that equitable ownership is a fact-specific inquiry, and we do not today purport to establish a comprehensive test for equitable ownership of a business. However, we do find the factors to which the parties direct our attention—control, family relationships, and receipt of benefits—appropriate for analyzing this appeal, with control being the most critical factor. Our discussion of the three factors follows.