Robert Brklacic v. Lori Parrish, in her official capacity as Property Appraiser of Broward County, Florida and Judith Fink, as Revenue Collector

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014

ROBERT BRKLACIC,
Appellant,

v.

LORI PARRISH, in her official capacity as Property Appraiser of Broward
County, Florida, and JUDITH FINK, as Revenue Collector,
Appellees.

No. 4D12-2597

[September 3, 2014]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Mily Rodriguez Powell, Judge; L.T. Case No. 11-2973(03)
CACE.

Jerome R. Schechter and Danielle Greenberg of Jerome R. Schechter,
P.A., Fort Lauderdale, for appellant.

Gregory Durden of Gregory Durden, P.A., and Mila K. Schwartzreich,
Fort Lauderdale, for appellees.

FORST, J.

Appellant Robert Brklacic appeals the final summary judgment entered
against him in favor of Appellees Lori Parrish (Property Appraiser of
Broward County) and Judith Fink (Revenue Collector for Broward County).
Appellant challenged Appellees’ assessment of an ad valorem back tax lien,
penalties, and interest based on Appellees’ determination that Appellant
was not entitled to a homestead exemption for his residential property in
Broward County when a homestead exemption was granted for the Palm
Beach County residential property of Appellant’s wife. Appellant
maintains that he and his wife had established “separate family units,”
entitling each of them to their own homestead tax exemption on their
respective residences. Appellees and the trial court found otherwise and,
upon review of the court’s application of the Florida Constitution and
Florida Administrative Code, we concur and affirm.

Background
 Appellant purchased a property in Broward County in 1979, and he
has resided there continuously while securing a homestead tax exemption
during that time. Appellant married “the love of his life” in 2001 and, as
of the time of the hearing in this case, he acknowledged that he and his
wife continue to maintain a predominately congenial marriage.
Notwithstanding the 2001 marriage, Appellant’s wife has continued to
maintain her own residence in Palm Beach County. The couple agreed to
maintain their own separate residences until each retired, for personal and
professional convenience. Both before and after the 2001 marriage, both
spouses claimed homestead tax exemptions for their respective properties.
Appellant testified that he and his wife never lived together on a daily basis,
but they stayed together on weekends and holidays when they traveled
together or when Appellant stayed with his wife at her home in Palm Beach
County. They have no children living in either residence. Appellant also
maintained that he and his wife kept separate accounts and monies.

Article VII, Section 6 of the Florida Constitution allows “[e]very person
who has the legal or equitable title to real estate and maintains thereon
the permanent residence of the owner” to claim a homestead tax
exemption. However, subsection (b) provides, “Not more than one
exemption shall be allowed any individual or family unit or with respect to
any residential unit.” Art. VII, § 6(b), Fla. Const. (emphasis added).

The Florida Department of Revenue is charged with the responsibility
to establish rules and regulations for assessing and collecting taxes. §
195.027(1), Fla. Stat. (2012). Thus, the Department of Revenue created
Administrative Code Rule 12D-7.007 to address the homestead tax
exemption. Subsection (7) provides, in relevant part:

A married woman and her husband may establish separate
permanent residences without showing “impelling reasons” or
“just ground” for doing so. If it is determined by the property
appraiser that separate permanent residences and separate
“family units” have been established by the husband and wife,
and they are otherwise qualified, each may be granted
homestead exemption from ad valorem taxation under Article
VII, Section 6, 1968 State Constitution.

Fla. Admin. Code R. 12D-7.007(7) (emphasis added).

In 2010, the Property Appraiser sent Appellant a notice of intent to file
a lien against his Broward County property because Appellant received a
homestead exemption for that property for the years of 2002 to 2009, but

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the Property Appraiser found that Appellant was not qualified for such an
exemption. Appellant then filed a complaint against the Property
Appraiser and the Revenue Collector, alleging that he is entitled to the
exemption because he has always maintained the subject property as his
permanent residence and, even though he is married, the spouses have
established separate family units. The complaint requested the court to
cancel the tax lien and reestablish the homestead exemption to the
Broward County property.

The trial court granted the Property Appraiser’s motion for summary
judgment, finding that the undisputed facts and the evidence support the
conclusion that Appellant and his wife were a single family unit and, as
such, Appellant has not shown entitlement to a homestead tax exemption
as his wife received one in Palm Beach County.

Analysis

As noted above, the pertinent Constitutional provision states, “Not more
than one exemption shall be allowed any individual or family unit or with
respect to any residential unit.” Art. VII, §6(b), Fla. Const. (emphasis
added). Two individuals (Appellant and his wife) received two homestead
exemptions with respect to two residential units (their respective Broward
and Palm Beach County residences). Appellant argues that he and his
wife are separate “family units” and, as such, entitled to their own separate
homestead exemptions for their respective separate permanent residences.
Neither the Property Appraiser nor the trial court challenged Appellant’s
claim that he and his wife primarily resided in separate permanent
residences; the sole contested issue is whether the trial court properly
determined, on summary judgment, that Appellant and his wife
constituted one family unit and were thus limited to one homestead
exemption.

No constitutional or statutory definition for “family unit” exists, and no
Florida appellate case addressed the issue until Wells v. Haldeos, 48 So.
3d 85 (Fla. 2d DCA 2010). In Wells, a husband owned and permanently
resided on a property in Florida and sought a homestead tax exemption.
Id. at 85. The husband had been separated from his wife for a few years
before he purchased the home and sought the exemption. Id. However,
the exemption was denied under the provision allowing for only one
exemption per family unit because the wife owned and permanently
resided on a property in the state of New York where she was already
receiving a residency-based property tax exemption. Id.

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 The trial court in Wells found that the husband was entitled to the
exemption and the Second District affirmed, holding that the husband and
wife constituted separate family units. Id. at 85-88. Significantly, “[t]he
trial court found that it would defy logic for two people ‘who have no
contact with one another, who don’t have any connections of a financial,
emotional or any other way to call them a family unit.’” Id. at 86 (emphasis
added). In arriving at its decision, the Second District relied on Fla. Admin.
Code R. 12D-7.007(7), as well as our previous decision regarding
protection of a homestead from liens in Law v. Law, 738 So. 2d 522 (Fla.
4th DCA 1999), the Florida Supreme Court’s decision regarding another
constitutional tax exemption in Judd v. Schooley, 158 So. 2d 514 (Fla.
1963), and advisory opinions from the Florida Attorney General, which all
agreed that married persons may establish separate homesteads under
certain circumstances. Wells, 48 So. 3d at 87-88. The Second District
concluded that “in the unique circumstances presented in [Wells], where
the husband and wife have established two separate permanent
residences in good faith and have no financial connection with and do not
provide benefits, income, or support to each other, each may be granted a
homestead exemption if they otherwise qualify.” Id. at 88. It appears that
the Second District, in defining “family unit” for the purposes of the
exemption, focused on the fact that the husband and wife were estranged.

In Law, we, albeit faced with a different constitutional provision
protecting a homestead from liens, focused on whether the husband and
wife were in an “intact marriage” to determine whether a husband and wife
could have two homesteads. Law, 738 So. 2d at 525. The husband and
wife in Law were separated and permanently living apart when the
husband sought to claim one residence as his homestead to be exempt
from liens while the wife was living in the couple’s former home where they
claimed a homestead tax exemption. Id. at 523. We analyzed the purpose
of the homestead exemption against creditors as a means of protecting the
family unit and concluded that there is “nothing inconsistent with our
policy if we extend a homestead exemption to each of two people who are
married, but legitimately live apart in separate residences, if they otherwise
meet the requirements of the exemption.” Id. at 525 (emphasis added).

The advisory opinions from the Florida Attorney General offer further
guidance as to how to define a “family unit” for homestead tax exemption.
In opinion number 75-146, the Attorney General was asked to advise
whether a married, yet separated, husband and wife could claim separate
homestead tax exemptions when they each established a separate
permanent residence. Op. Att’y Gen. Fla. 75-146 (1975). The question
was answered in the affirmative because the separation (as in,
estrangement) of the parties made them separate family units. Id.; see

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also Op. Att’y Gen. Fla. 2005-60 (2005) (explaining that opinion number
75-146 found that the married individuals could obtain separate
homestead exemptions because of the circumstances where the spouses
were separated). In the same opinion, the Attorney General referenced
opinion number 64-05, which found that a married couple living
separately but still residing together for periods of time could not be entitled
to separate homestead tax exemptions. Op. Att’y Gen. Fla. 75-146 (1975)
(explaining that opinion number 64-05 concluded that a husband and a
wife could not both be “granted [a] homestead tax exemption on dwelling
houses maintained by each of them merely because they spend a large
part of the time in their separate dwelling houses”) (quoting Op. Att’y Gen.
Fla. 64-05 (1964)).

Subsequent advisory opinions consistently emphasize that married
individuals can obtain separate exemptions only when they have
established separate permanent residences and separate family units.
See, e.g., Op. Att’y Gen. Fla. 2005-60 (2005); Op. Att’y Gen. Fla. 2008-13
(2008). This suggests that, with respect to the legal authorities that have
addressed the definition of “family unit,” the focus is more than just where
the members of the family live, contrary to Appellant’s contention in the
instant case. The foregoing law and persuasive authority favor finding that
a married couple constitutes a single family unit when the marriage is
intact, as opposed to the couple being separated or estranged. A single
family unit would thus exist where spouses (even though living in separate
primary residences or even separate permanent residences) live together
at different periods of time, support each other in some financial or
emotional way, and/or present themselves as a married couple (as
opposed to estranged individuals who are just technically still married).
See Wells, 48 So. 3d at 88; Law, 738 So. 2d at 523-24.

Conclusion

“Summary judgment is proper if there is no genuine issue of material
fact and if the moving party is entitled to a judgment as a matter of law.”
Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla.
2000); Fla. R. Civ. P. 1.510(c). The burden is on the moving party to
conclusively show that no genuine issue of material fact exists. Frost v.
Regions Bank, 15 So. 3d 905, 906 (Fla. 4th DCA 2009). “If the record
reflects even the possibility of a material issue of fact, or if different
inferences can reasonably be drawn from the facts, the doubt must be
resolved against the moving party.” McCabe v. Fla. Power & Light Co., 68
So. 3d 995, 997 (Fla. 4th DCA 2011) (quoting Fla. Atl. Univ. Bd. of Trs. v.
Lindsey, 50 So. 3d 1205, 1206 (Fla. 4th DCA 2010)).

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 We affirm the trial court’s judgment that the Property Appraiser
satisfied the criteria for a summary judgment decision in this case. There
are no issues of material fact as to whether Appellant and his wife
constituted one “family unit” as that term has been construed,1 and, as
such, they were limited to one homestead exemption. Appellant has
presented ample evidence that the Broward County residence was his
primary residence and that there was little intermingling of the couple’s
finances. However, he and his wife were not “separated” as that term is
understood in the context of the marital relationship, and the couple
regularly spent time together in the same residence.

Because the undisputed facts are sufficient to establish that Appellant
and his wife maintained an intact marriage during the operative years,
they are a single “family unit” entitled to one homestead tax exemption,
which Appellant’s wife claimed during each year of the time period at issue
(2002-09). As such, Appellant was not entitled to a second homestead tax
exemption and the final summary judgment order is affirmed.

Affirmed.

STEVENSON and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

1 Appellant never asserted that he and his wife were “estranged” or living separate
lives 24/365. If he had done so, it would have placed the Property Appraiser and
her staff in the position of determining whether the couple’s marriage was no
longer intact—“your honor, Exhibit 33 is a photo of the Defendant and his wife
holding hands.” On the flip side, an argument could be made that a couple with
a very intact relationship who split their time between two residences may be able
to claim two homestead exemptions so long as they are not legally married. One
commenter has referred to this as the “‘unwed’ loophole.” Amanda S. Coffey,
Pillow Talk and Property Taxes: Florida’s Family Unit Requirement for Homestead
Exemption and the Modern Marriage, 41 Stetson L. Rev. 401, 416 (2012).
Although we need not meander down that thorny path in the instant case, the
ambiguity and perhaps unforeseen consequences associated with the definition
of the term “family unit” may merit legislative scrutiny in the near future.

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