EFTA01297082.pdf

Erika Kellerhals
NAME SEARCHED:
PWM BIS-RESEARCH performed due diligence research in accordance with the standards set by AML Compliance for your business. We completed thorough searches
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RU0 t. RDC Results
O Ilia
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O Hit
No Information Found
III. Negai is c Nleclia
Ms O Yes 0 No
. No Information Found
IV. Non-Ncimi i% c \ I eska
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Result found(please see attached)
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Prepared by: Shreya parashar Date: 07/11/2017 Research Analyst
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For internal use only
S0NY_BM_00059957
CONFIDENTIAL
CONFIDENTIAL — PURSUANT TO FED R. CRIM. P. 6(e) DB-SDNY-0022781
EFTA_00170501
EFTA01297082

Page 2
OFAC RESULTS
RDC:
a c,. . „ ,,.UNITED
Date of
No.M.atch GCIS
11604604 Birth•
Found 00000499664 Erika Kellerhals STATES
I
PCR:
C20170738204806 Erika Kellerhals 12998482 NCA customised Auto-Closed No-Hit 12/07/2017
BIS RESULTS:
Negative Media:
No Information Found
Non-Negative Media:
No Information Found
Other Language Media:
No Information Found
Public Record:
1 OF 1 RECORD(S)
FOR INFORMATIONAL PURPOSES ONLY
Copyright 2017 LexisNexis
a division of Reed Elsevier Inc. All Rights Reserved.
Date:7/11/2017
Report processed by:
DEUTSCHE BANK AGII
Full Name Address County Phone
KELLERHALS, ER IIKA A RICHMOND
STATEN ISLAND, NY
RICHMOND COUNTY
ADDITIONAL PERSONAL INFORMATION
SSN DOB Gender LexID(sm)
MXXXX
001368644215
(Age 42)
Subject Summary
For internal use only
SDNY_GM_00059958
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Name Variations
1: KELLERHALES, ERICKA A
2: KELLERHALLS. ERIKA A
3: KELLERHALS, E A
4: KELLERHALS. ERIKA
5: KELLERHALS. ERIKA A
SSNs Summary
No. SSN State Iss. Date Iss. Warnings
Most frequent SSN attributed to subject:
1 -XXXX New York
Possible E-Mail Addresses
Others Using SSN - 2 records found
# Full Name SSN DOB
1 KELLERHALS. ENER >0OO(
11 YOUNG. MICHAEL S XXXX
Address Summary - 14 records found
No.
1
STATEN ISLAND. NY
RICHMOND COUNTY
2: 9053 SUGAR EST STE 101
ST THOMAS. VI 00802-3653
ST. THOMAS COUNTY
3:
JUPITER. FL
PALM BEACH COUNTY
4: 9053 ESTATE THOMAS APT 101
ST THOMAS. VI 00802
ST. THOMAS COUNTY I Social Services Facility
5: 9100 PORT OF SALE MALL STE 15
ST THOMAS, VI 00802-3602
ST. THOMAS COUNTY
6: 9053 ESTATE THOMAS STE 10
ST THOMAS. VI 00802
ST. THOMAS COUNTY
7: PO BOX 608
ST THOMAS, VI a
ST. THOMAS COUNTY
8: PO BOX 6347
ST THOMAS. VI =6347
ST. THOMAS COUNTY
9: 9100 PORT OF SALE MALL STE 2
ST THOMAS. VI 00802-3602
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SDNY_GM_000 59959
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No. Address
ST. THOMAS COUNTY
10:
BROOKLYN. NY
KINGS COUNTY
BROOKLYN. NY
KINGS COUNTY
12:
BROOKLYN, NY
KINGS COUNTY
13:
STATEN ISLAND, NY
RICHMOND COUNTY
14:
STATEN ISLAND, NY
RICHMOND COUNTY
Adtdarli m
STATEN ISLAND, NY
Address Dates
2/1994 - 4/2017
STATEN ISLAND. NY
RICHMOND COUNTY
Census Data for Geographical Region
Median Head of Household Age' 47
Median Income: $82,353
Median Home Value: $584,337
Median Education: 14 years
Household Members
DAHLING. MELISSA A
KELLERHALS, EDWARD
KELLERHALS, EDWARD A
KELLERHALS. ENER
KELLERHALS. KATHLEEN M
Other Associates
HANRATTY, THOMAS E
2: 9053 SUGAR EST STE 101 ST THOMAS, VI 00802-3653
Address Dates Phone
9053 SUGAR EST STE 101 6/2017 -6/2017
ST THOMAS. VI 00802.3653
ST. THOMAS COUNTY
Household Members
None Listed
Other Associates
None Listed
3: JUPITER, FL
Dates Phone
4/2017 - 5/2017
JUPITER. FL
PALM BEACH COUNTY
Census Data for Geographical Region
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Median Head of Household Age: 63
Median Income: $126:306
Median Home Value: $728,954
Median Education: 16 years
Household Members
None Listed
Other Associates
None Listed
4: 9053 ESTATE THOMAS APT 101 ST THOMAS, VI 00802
Address Dates Phone
9053 ESTATE THOMAS APT 101 6/2016 - 10/2016
ST THOMAS, VI 00802
ST. THOMAS COUNTY
Household Members
None Listed
Other Associates
None Listed
5: 9100 PORT OF SALE MALL STE 15 ST THOMAS, VI 00802-3602
Address Dates Phone
9100 PORT OF SALE MALL STE 15 12/2003 - 6/2016
ST THOMAS, VI 00802-3602
ST. THOMAS COUNTY
Household Members
None Listed
Other Associates
BETZ, SHAUNA L
6: 9053 ESTATE THOMAS STE 10 ST THOMAS, VI 00802
Address Dates Phone
9053 ESTATE THOMAS STE 10 5/2016 - 5/2016
ST THOMAS, VI 00802
ST. THOMAS COUNTY
Household Members
None Listed
Other Associates
None Listed
7: PO BOX 608 ST THOMAS, VI
Address Dates Phone
PO BOX 608 3/2004 - 11/2015
ST THOMAS. VI
ST THOMAS COUNTY
Household Members
KELLERHALS, EDWARD A
Other Associates
FERGUSON, GREG J
8: PO BOX 6347 ST THOMAS, VI =4347
Address Dates Phone
PO BOX 6347 3/2004 - 4/2009
ST THOMAS. VI =-6347
ST. THOMAS COUNTY
Household Members
KELLERHALS. EDWARD A
Other Associates
FERGUSON. GREG J
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9: 9100 PORT OF SALE MALL STE 2 ST THOMAS, VI 00802-3602
Address Dates Phone
9100 PORT OF SALE MALL STE 2 7/2003 - 6,2004
ST THOMAS. VI 00802-3602
ST. THOMAS COUNTY
Household Members
KELLERHALS. EDWARD A
Other Associates
None Listed
10: BROOKLYN, NY
Dates Phone
11/1997 - 11/1997
BROOKLYN, NY
KINGS COUNTY
Census Data for Geographical Region
Median Head of Household Age: 34
Median Income: $127,273
Median Home Value: $741,587
Median Education: 18 years
Household Members
None Listed
Other Associates
None Listed
11: BROOKLYN, NY
Dates Phone
10/1997 - 11/1997
BROOKLYN, NY
KINGS COUNTY
Census Data for Geographical Region
Median Head of Household Age: 34
Median Income: $127,273
Median Home Value: $741,587
Median Education: 18 years
Household Members
None Listed
Other Associates
None Listed
12: BROOKLYN, NY
Dates Phone
2/1994 - 10/1997
BROOKLYN. NY
KINGS COUNTY
Census Data for Geographical Region
Median Head of Household Age: 34
Median Income: $127,273
Median Home Value: $741,587
Median Education: 18 years
Household Members
KELLERHALS. KATHLEEN M
Other Associates
None Listed
13: STATEN ISLAND, NY
Dates Phone
2/1994 - 2/1994
STATEN ISLAND, NY
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RICHMOND COUNTY
Census Data for Geographical Region
Median Head of Household Age. 47
Median Income: $74,028
Median Home Value: $483.978
Median Education: 13 years
Household Members
None Listed
Other Associates
None Listed
14: STATEN ISLAND, NY
Address Dates Phone
2/1994 - 2/1994
STATEN ISLAND. NY
RICHMOND COUNTY
Census Data for Geographical Region
Median Head of Household Age: 42
Median Income: $95,399
Median Home Value: $462,729
Median Education: 13 years
Household Members
None Listed
Other Associates
None Listed
Voter Registrations -1 records found
1: New York Voter Registration
Registrant Information
Name: KELLERHALS, ERIKA A
Residential Address:
STATEN ISLAND, NY
OND COUNTY
SSN: X
Date of Birth:
Gender: Female
Voter Information
Last Vote Date: 2002
Party Affiliation: DEMOCRAT
Active Status: ACTIVE
Driver Licenses - 0 records found
Professional Licenses - 0 records found
Health Care Providers - 0 records found
Health Care Sanctions - 0 records found
Pilot Licenses - 0 records found
Sport Licenses - 0 records found
Real Property - 0 records found
Motor Vehicle Registrations - 4 records found
1: FL MVR
Registrant Information
Registrant: KELLERHALS, ERIKA A
DOB:
Address:
JUPITER, FL
PALM BEACH COUNTY
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Registration Information
Original Registration Date: 4/17/2017
Registration Date: 4/17/2017
Registration Expiration Date: 10/13/2017
Decal Number: 20117043
Vehicle Information
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 2017
Make: Toyota
Model: 4Runner
Series: SR5/LIMITED/SR5 P
Body Style: 4 Dr Wagon Sport Utility
Color: white
Plate Information
License Plate Type:
License Plate Number: FL
Plate State: FL
Source Information
Data Source: GOVERNMENTAL
2: FL MVR
nformation
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 2017
Make: Toyota
Model: 4Runner
Series: SR5/LIMITED/SR5 P
Body Style: 4 Dr Wagon Sport Utility
Color: White
Owner Information
Name: KELLERHALS. ERIKA A
DOB:
Address:
JUPITER, FL
PALM BEACH COUNTY
Lienholder Information
Name: USAA FEDERAL SAVINGS BANK
Address: PO BOX 25145
LEHIGH VALLEY. PA 18002-5145
NORTHAMPTON COUNTY
Title Information
Title Number:
Title Transfer Date: 4/17/2017
Title Issue Date: 5/5/2017
Source Information
Data Source: GOVERNMENTAL
3: NY MVR
Registrant Information
Registrant: KELLERHALS. ERIKA A
DOB:
Address:
STATEN ISLAND. NY
RICHMOND COUNTY
Registration Information
Original Registration Date: 1/30/2002
Registration Date: 1/30/2002
Registration Expiration Date: 1/29/2004
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Vehicle Information
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 2002
Make: Volkswagen
Model: Passat
Series: as
Body Style: Sedan 4 Door
Weight: 3196
Plate Information
License Plate Type: Pri
License Plate Number:
Plate State: NY
Source Information
Data Source: GOVERNMENTAL
4: NY MVR
Vehicle Information
VIN:
Class: PASSENGER CAR/LIGHT TRUCK
Model Year: 2002
Make: Volkswagen
Model: Passat
Series: as
Body Style: Sedan 4 Door
Weight: 3196
Owner Information
Name: KELLERHALS, ERIKA A
DOB:
Address:
STATEN ISLAND, NY
RICHMOND COUNTY
Lienholder Information
Name: CHASE MANHATTAN BANKUSA NA
Address: PO BOX 5210
NEW HYDE PARK, NY 11042-5210
NASSAU COUNTY
Title Information
Title Transfer Date: 3/6/2002
Title Issue Date: 3/6/2002
Source Information
Data Source: GOVERNMENTAL
Boats - 0 records found
Aircraft - 0 records found
Bankruptcy Information - 0 records found
Judgments/Liens - 0 records found
UCC Liens - 0 records found
Fictitious Businesses - 0 records found
Notice Of Defaults - 0 records found
Potential Relatives - 10 records found
1st Degree: 6. 2nd Degree: 4
No. Full Name Address/Phone
1. KELLERHALS, ENER
BROOKLYN, NY
SON.ISCOCX
DOB:
(Age: 42) STATEN ISLAND, NY
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No. Full Name MN°
2. KELLERHALS, EDWARD A
NY
• AKA RELLERMALS, EDWARD A
• AKA KELLERNALS, EDW
SSN:EXXXX NY
DOB:
(Age: 72)
PO BOX 608
ST THOMAS. VI 00804-0608
PO BOX 6347
ST THOMAS. VI 00804-6347
9100 PORT OF SALE MALL STE 2
ST THOMAS, VI 00802-3602
3. KELLERHALS, KATHLEEN M
NY
• AKA KELLERHAL, KATHLEEN M
• AKA KELLERHALS, KATHLEEN
• AKA KELLERHALS, K M
• AKA KELLERHALS, KATHEEN D. NY
• AKA KELLERBALS. KATHLEEN M
• AKA KELLERHALS, KATHLEEN M
SSN:EXXXX BROOKLYN, NY
DOB:
(Age: 68)
BROOKLYN, NY
4. KELLERHALS, EDWARD
STATE D, NY
5. DAHLING. ROBERT J
WEST ISLIP, NY
SSN:EXXXX
DOB:
(Age: 46) STAT N IS AND, NY
STATEN ISLAND. NY
PO BOX
STATEN ISLAND, NY
TA ND . NY
5.A. DAHLING. PATRICIA M
NY
• AKA DAHLING. P
SSN:MXXXX
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No. Full Narne Address/Phone
DOB:
(Age: 74) NY
STATEN ISLAND, NY
5.B. DAHLING. MICHAEL A
PHOENIX, AZ
• AKA DAHLIG, MICHAEL
SSN:EXXXX GOODYEAR, AZ
DOB:
(Age: 43)
TEMPE, AZ
CHANDLER, AZ
NY
S.C. MAYFIELD, JESSICA E
PHOENIX, AZ
• AKA, DAHLING. JESSICA A
• AKA MAYFIELD, JESSIE
• AKA MAYFIELD, JESSI PHOENIX AZ
• AKA MORRIS. JESSICA
• AKA BUCCOLA. JESSIE
SAN DIEGO. CA
SSMIXXX
DOB:
(Age: 39)
Sae AZ
6. DAHLING, MELISSA A
NY
• AKA KELLERHALS, MELISSA A
SSN:liaXXX
DOB: STATEN ISLAND, NY
(Age: 45)
D. NY
NY
6.A. DAHLING, ROBERT J
D, NY
SSN:EIXXX
DOB:
(Age: 76)
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No. Full Name Address/Phone
STATEN ISLAND, NY
STATEN ISLAND. NY
Business Associates -1 records found
1: KELLERHALS FERGUSON FLETCHER KROBLIN PLLC
Name: KELLERHALS, ERIKA A
Address: 501 E KENNEDY BLVD STE 802
TAMPA, FL 33602-5201
Status: INACTIVE
State: FL
Corporation Number: M13000002984
Descriptive Status: INACTIVE
Title: MEMBER MANAGER
Record Type: CURRENT
Record Date: 12/5/2016
Filing Date: 1/6/2014
Person Associates - 7 records found
No. Full Name Address SSN Phone DOB
1: BETZ, SHAUNA L 6501 RED HOOK PLZ STE 1=-XXXX
201
ST THOMAS, VI 00802-
1373
9100 PORT OF SALE
MALL STE 15
ST THOMAS. VI 00802-
3602
5600 ROYAL DANE MALL
STE 51
ST THOMAS. VI 00802-
6410
DENVER, CO
DENVER. CO
2: FERGUSON, GREG J 9100 PORT OF SALE
FERGUSON. GREGORY J MALL STE 15
ST THOMAS, VI 00802-
3602
PO BOX
lir MAS. VI
PO BOX 608
ST THOMAS, VI 00804-
0608
PO BOX 6347
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No. Full Name Address SSN Phone DOB
ST THOMAS, VI 00804-
6347
MESA. AZ
3: HANRATTY, THOMAS E
AND, NY
STATEN ISLAND. NY
iliallAND, NY
1=-)(xxx
4: ROBINSON, KELLY M 9100 PORT OF SALE
TRAYNOR, KELLY MALL STE 22
ST THOMAS. VI 00802-
3602
9100 PORT OF SALE
MALL STE 15
ST THOMAS. VI 00802-
3602
ST THOMAS, VI
TS OMAS, VI
ST THOMAS. VI
MXXXX
5: TRAYNOR, CARA 9100 PORT OF SALE
ROBINSON. CARA MALL STE 22
ST THOMAS, VI 00802-
3602
9100 PORT OF SALE
MALL STE 15
ST THOMAS, VI 00802-
3602
11-1OMAS. VI
"TOMAS. VI
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No. Full Name Address SSN Phone DOB
ST THOMAS, VI
6: GEARY. BRETT A A 9053 ESTATE THOMAS
APT 101
CHARLOTTE AMALIE. VI
00802
9100 PORT OF SALE
MALL STE 22
ST THOMAS. VI 00802-
3602
DUMFRIES, VA I=
9100 PORT OF SALE
MALL STE 15
ST THOMAS. VI 00802-
3602
PO BOX
iiiHOMAS. VI
7: THOMAS. WILLIAM AVERY XXXX 10/1984
DALLAS. TX
NORMAN. OK
APT 2
NORMAN, OK
1SWATER, OK
9100 PORT OF SALE
MALL STE 15
ST THOMAS, VI 00802-
3602
Nei hbors - 10 records found
STATEN ISLAND, NY
Name dress Phone
CAHILL, JAMES BRIAN
CARDO, ERICA STATEN ISLAND, NY
BURKE, MATTHEW L JR
STATEN ISLAND.
ASSENZA. CHRISTOPHER M
ASSENZA, MICHAEL P STATEN ISLAND. NY
CATALFUMO, ANA M
CATALFUMO. MICHAEL J
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CIRIGLIANO. SUZANNE
GUIRACOCHA, JULIO CESAR
GUIRACOCHA, CARLOS A
STATEN ISLAND. N..=
MIRO, FRANK AGUSTIN
PACCIONE, PAMELA J STATEN ISLAND, NY
r4 A7AROV, MICHELLE J
STATEN ISLAND, NY
KRUSE. ADAM M
KRUSE. BRANDON G STATEN ISLAND. NY
KRUSE, DONNA V
KRUSE, JOHN J
KRUSE, VICTORIA M
PRIOLO. ANNMARIE R
CUSACK, CHRISTOPH J
STATEN ISLAND. NY
CUSACK, MARIE E
STATEN ISLAND.
MCMILLAN, MAUREEN A
MCMILLAN, ROBERT W STATEN ISLAND. NY
MCMILLAN, ROBERT M
Employment Locator -15 records found
1:
Company Name: GRATITUDE AMERICA LTD
Name: KELLERHALS, ERIKA
Address: 9053 ESTATE THOMAS SUITE 101
MAS, VI 00802
SSN: 111XXXX
Confidence: High
2:
Company Name: KELLERHALS FERGUSON FLETCHER KROBLIN PLLC
Name: KELLERHALS, ERIKA A
Title: mamagR MANAGER
SSN: XXXX
Confidence: Medium
3:
Company Name: THERAPY ASSOCIATION AND DISABILITIES ADVOCATES INC
Name: KELLERHALS. ERIKAA
Address: PO BOX 6016
latMAS. VI 00804-6016
SSN: XXXX
Confidence: High
4:
Company Name: THE MAHOGANY RUN HOME OWNERS ASSOCIATION
Name: KELLERHALS. ERIKAA
Title: VICE PRESIDENT AND DIRECTOR
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Address: 6501 RED HOOK PLZ STE 201
ST THOMAS, VI 00802-1373
SSN:
Phone:
Confidence: Medium
5:
Company Name: PATIENT ASSIST VI
Name: KELLERHALS. ERIKA A
Address: 9100 PORT OF SALE MALL STE 15
.1 1HDMAS. VI 00802-3602
SSN: XXXX
Confidence: High
6:
Company Name: VISF
Name: KELLERHALS, ERIKA A
Title: VICE PRESIDENT
Address: PO BOX 1605
KINGSHILL. VI 00851-1605
SSN: MO(
Phone:
Confidence: Medium
7:
Company Name: KELLERHALS P.0
Name: KELLERHALS, ERIKA A
Title: PARTNER
Address: PO BOX 608
T THOMAS. VI 00804-0608
SSN: XXXX
Phone:
Confidence: Medium
8:
Company Name: THERAPY ASSOCIATION AND DISABILITIES ADVOCATES INC
Name: KELLERHALS, ERIKA A
Address: PO BOX 608
MAS, VI 00804-0608
SSN: XXXX
Confidence: High
9:
Company Name: ERIKA A. KELLERHALS P.0
Name: KELLERHALS, ERIKA A
Address: PO BOX 608
MAS, VI 00804-0608
SSN:
Phone:
Confidence: Medium
10:
Company Name: ERIKA A. KELLERHALS P.0
Name: KELLERHALS. ERIKA
Title: PRESIDENT
Address: PO BOX 608
OMAS. VI 00804-0608
SSN:
Phone:
Confidence: Medium
11:
Company Name: MARJORIE RAWLS ROBERTS P.0
Name: KELLERHALS, ERIKA A
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Title: ATTORNEY
Address: PO BOX 6347
OMAS. VI 00804-6347
SSN:
Phone:
Confidence: Medium
12:
Company Name: ROBERTS, MARJORIE RAWLS
Name: KELLERHALS, ERIKA A
Title: ASSOCIATE
Address: PO BOX 6347
T THOMAS, VI 00804-6347
SSN:
Phone:
Confidence: High
13:
Company Name: THE LALTJ LIMITED PARTNERSHIP
Name: KELLERHALS, ERIKA MS
Title: CONTACT
Address: 17 STATE ST
NEW YORK, NY 10004-1501
SSN: =-XXXX
Confidence: High
14:
Company Name: ERIKA A. KELLERHALS, P.C.
Name: KELLERHALS, ERIKAA
Title:
SSN: XXXX
Phone:
Confidence: High
15:
Company Name: MARJORIE BAWLS ROBERTS P.0
Name: KELLERHALS, ERIKAA
Address: PO BOX 6347
OMAS, VI 00804-6347
SSN:
Phone:
Confidence: Medium
Criminal Filings - 0 records found
Cellular & Alternate Phones -1 records found
1:
Personal Information
Name: KELLERHALS, ERIKA
Address:
NY
Phone Number:
Phone Type: Mobile
Carrier Information
Carrier: NEW CINGULAR WRLS GA
Carrier City: CHARLOTTE AMALIE (SAINT T
Carrier State: VI
Sources - 48 records found
All Sources 48 Source Document(s)
Corporate Affiliations 1 Source Documents)
Email addresses 7 Source Document(s)
Historical Person Locator 10 Source Document(s)
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Court Cases:
JAMES P. CARROLL v. DAWN PROSSER
Civil Action No. 08-147
United States District Court for the District of the Virgin
Islands, St. Thomas and St. John Division
2012 U.S. Dist. LEXIS 79534
June 6, 2012, Decided
June 6, 2012, Filed
SUBSEQUENT HISTORY: Affirmed by Prosser v. Carroll (In re Prosser), 2013 U.S. App.
LEXIS 15853 (3d Cir. V.I., Aug. 1, 2013)
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PRIOR HISTORY: Carroll v. Prosser, 2008 U.S. Dist. LEXIS 54960, 50 V.I. 389 (2008)
CORE TERMS: matter of law, insolvency, badge, "actual fraud, transferred, new trial,
defraud, actual intent, fraudulent transfers, jury verdict, failed to present, essential element,
post-petition, hinder, proven, deliberations, jewelry, transfers of property, failed to prove,
citations omitted, instructing, fraudulent, waived, personal bank account, contra-equity,
fraudulently. ownership, intent to hinder, direct evidence, unauthorized
COUNSEL: fli Bernard C. Pattie, Law Offices of Barnard Pattie P.C., St. Croix, USVI;
Fred Stevens, Yann Geron, Fox Rothschild LP, New York, NY; Samuel H. Israel,
FoxRothchild LLP, Philadelphia, PA, For James P. Carroll, Plaintiff.
Christopher A. Kroblin, Erika Kellerhals P.C., St. Thomas, USVI; Jeffrey B. C. Moorhead,
Christiansted, USVI; Mark W. Eckard, Groner & Eckard, P.C., Christiansted, USVI;
Norman Anthony Abood, Law Office of Norman A. Abood, Toledo, OH; Robert F. Craig,
Robert F. Craig, P.C., Omaha, NE, For Dawn Prosser, Defendant.
JUDGES: SANCHEZ, J.
OPINION BY: Juan R. Sanchez
OPINION
MEMORANDUM
(June 6. 20121
In this turnover action, James P. Carroll, the Chapter 7 trustee for the bankruptcy estate of
non-party Debtor Jeffrey Prosser, seeks to restore to the estate pre-petition fraudulent
transfers and post-petition unauthorized transfers made from Debtor Jeffrey Prosser to his
wife, Defendant Dawn Prosser. Following trial, the jury returned a verdict in favor of
Trustee Carroll and against Prosser. Thereafter, Prosser moved for judgment as a matter
of law and, in the alternative, filed a ["2] "protective" motion for a new trial. The Trustee
moved for judgment on the jury verdict.
1 By agreement of al parties. this case was tried contemporaneously with the parallel Chapter 11 case. Sten Springs! v. Dawn
Prosser. No. 08-146 (D.V.I.) to two separate juries. Although the two juries heard the overlapping evidence in the two cases at
the same time as each other. each jury heard a separate opening and closing. each jury was charged independent,/ of the
other, and each jury deliberated separately.
In her motion for judgment as a matter of law, Prosser argues Carroll failed to present any
evidence that Jeffrey Prosser owned the assets at the time of their transfer. Specifically,
Prosser argues the evidence was necessarily insufficient because the jury in the parallel
Chapter 11 case, Stan Springel v. Dawn Prosser, No, 08-146 (D.V.I.), found the transfers
were made directly from Jeffrey Prosser's company to his wife for fair value and without
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fraud, indicating Jeffrey Prosser never owned the assets. In addition, Prosser argues
Carroll failed to prove Jeffrey Prosser's insolvency at the time of each transfer, an
[*3]
essential element of Carroll's claims, Carroll contends these two issues have been
waived because Prosser failed to raise them in a motion for judgment as a matter of law
prior to submission of all the evidence to the jury. Alternatively, Carroll asserts Prosser's
arguments fail as a matter of law.
Federal Rule of Civil Procedure 50, which was amended in 2006, permits a court to grant
judgment as a matter of law "only if, viewing the evidence in the light most favorable to the
nonmovant and giving it the advantage of every fair and reasonable inference, there is
insufficient evidence from which a jury reasonably could find liability." Price v. Trans Union,
L.L. C., No. 09-1332, 2012 U.S. Dist. LEXIS 36176, at *7, [WL], at *2 (E.D. Pa. Mar.
16,2012) (quoting LePage's' Inc. v. 3M, 324 F.3d 141, 145-46 (3d Cir. 2003)). In
determining whether to grant this "sparingly invoked remedy," the court must "refrain from
weighing the evidence, determining the credibility of witnesses, or substituting [itsj own
version of the facts for that of the jury." Marra v. Phila. Nous. Auth., 497 F.3d 286, 300 (3d
Cir. 2007) (internal citations and quotation marks omitted). A motion for judgment as a
matter of law may "be made at any time before the case is submitted to the jury." FED R.
raj
Civ. P. 50(a)(2). As long as the motion was raised before the jury received the case,
the movant may renew the motion within 28 days after entry of judgment. FED. R. CR/. P.
50(b). However, failure to make a motion for judgment as a matter of law during trial
'Wholly waives the right to mount any post-trial attack on the sufficiency of the evidence."
Murphy v. City of Phila. DepY of Recreation, No. 07-4104, 2011 U.S. Dist. LEXIS 94358, at
*9, [WL], at *3 n.l (E.D. Pa. Aug. 19, 2011) (citations omitted); see also Jeckell v.
Crestwood Area Sch. Dist, No. 04-1135, 2008 U.S. Dist. LEXIS 71380, at *1, [WL), at *2-3
(M.D. Pa. Sept. 18, 2008).
Although Prosser made a Rule 50 motion during trial, her argument, as it related to the
Chapter 7 case, was only that Trustee Carroll did not adduce proof of actual intent by
Jeffrey Prosser to hinder, delay, or defraud his creditors. This is not the same as arguing
Trustee Carroll failed to prove Jeffrey Prosser owned the assets he transferred to his wife.
In addition, Prosser asserted an insolvency argument, however this argument related only
to the solvency of Jeffrey Prosser's company, and not to himself personally. Thus,
because Prosser did not raise either of the arguments she seeks to raise herein at trial,
[*
they 5] are deemed waived.
Prosser contends it would he unfair and inequitable to find waiver, as her arguments could
not have been raised until the jury in the Chapter 11 case delivered its verdict. Prosser
thus contends this Court should view the Chapter 11 jury verdict as newly discovered
evidence pursuant to Federal Rule of Civil Procedure 60 (permitting a court to relieve a
party from a final judgment for, inter alia, "newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a new trial under Rule
59(b)"). This Court disagrees.
The verdict in the parallel Chapter 11 case is entirely irrelevant to the issue of whether
Prosser could have raised the arguments made here before the jury's deliberations.
Indeed, the Chapter 11 jury's finding was based on evidence submitted prior to that jury's
deliberations. If, based on the evidence submitted at trial, the Chapter 11 jury could find
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the transfers at issue in that ease were made directly from Jeffrey Prosser's company to
his wife for fair value and without fraud, so too Prosser could have argued — "at any time"
['
during the course of the trial, and certainly once all the evidence had been submitted 6]
to the jury -- that Carroll failed to present evidence showing Jeffrey Prosser owned the
assets he transferred to his wife, and failed to present evidence showing Jeffrey Prosser's
insolvency at the time of each transfer. There is no reason why Prosser had to wait for the
jury verdict in the parallel case before raising either of those arguments.
Even if this Court were to find Prosser's arguments not waived, however, the motion is
denied as a matter of law. Upon review of the evidence submitted to the jury, this Court
finds Trustee Carroll submitted sufficient evidence regarding Jeffrey Prosser's ownership
of the assets he fraudulently transferred to his wife to support the verdict in this case. In
addition, the Court finds Jeffrey Prosser's insolvency at the time of each transfer is not an
essential element of Trustee Carroll's claims.
Trustee Carroll presented Alan Barbree, a forensic accounting expert, to testify about
Jeffrey Prosser's ownership of each of the five categories of assets Carroll sought to
recover in his case: (1) cash; (2) jewelry: (3) improvements to the Shoys Estate; (4)
furniture; and (5) fine art and antiques. As to the first two categories, Barbee testified that
r7] Jeffrey Prosset transferred cash and jewelry to his wife via payments made directly
from his personal bank account. Trial Tr. 118:3-120:7, 12.1:7-124:19,125:2-15,129: 8-
130:23,132:2-17,135:11-136:5,136:18-141:16,141:20-142:11, June 7, 2011. These
transfers were explained in detail at trial, and supporting documentation was included With
Barbree's summary of the transfers, all of which was provided to the jury during its
deliberations so it could track the payments. Based on this evidence, the jury could
reasonably have concluded Jeffrey Prosser's personal bank account was the point of
origin for the cash and jewelry transferred. See id.; see also Trial Exs. 201 - 203, 216.
Barbree further testified that the remaining three categories of assets Trustee Carroll
sought to recover (improvements to the Shoys mansion, furniture, and art and antiques)
were paid for either through Jeffrey Prosser's personal bank account or through a "contra-
equity account" set up at Jeffrey Prosser's company for his use. Trial Tr. 143:17-24,
144:20-145:8, 147:3-161:22, June 7, 2011. As stipulated by the parties, payments made
rsj
through this contra-equity account were "distributions" made solely for the benefit of
the shareholder, Jeffrey Prosser, and thus were Prosser's personal funds. Id. at 163.
These transfers were also explained in detail at trial, and supporting documentation was
again provided to the jury at the time of its deliberations so it could also track these
payments. See Trial Exs. 213-215, 217. From this evidence alone, a jury could reasonably
conclude the assets paid for through the contra-equity account, as distributions to Jeffrey
Prosser, were owned by Jeffrey Prosser, and were in fact transfers from Jeffrey Prosser to
his wife. Moreover, Prosser herself tetified these items were gifts from her husband,
providing further evidence of her husband's initial ownership. See, e.g., Trial Tr. 224:6-25
(jewelry), June 7, 2011. As a result, this Court finds Trustee Carroll presented sufficient
evidence for a jury to conclude Jeffrey Prosser owned the particular assets at issue which
he men fraudulently transferred to his wife.
Prosser next argues Trustee Carroll failed to present evidence of Jeffrey Prosser's
insolvency at the time of each transfer, which Prosser contends was an essential element
['
of each of Carroll's claims. Trustee Carroll asserted three types of claims against 9]
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Prosser. The first two types of claims were based on "actual fraud," meaning that Trustee
Carroll bore the burden of proof to show Jeffrey Prosser made transfers to his wife with
"actual intent to hinder, delay, or defraud a creditor." 11 U.S.C. § 548(a)(1)(A) (actual fraud
provision); In re Valley Bldg. & Constr. Corp., 435 B.R. 276, 285 (Bankr. E.D. Pa. 2010)
(stating actual fraud provisions require the trustee to establish the debtor made payments
with actual intent to hinder, delay, or defraud any creditor). Because "individuals are rarely
willing to admit intent, actual fraud is rarely proven by direct evidence," In re Pa. Gear
Corp., Bankr. No. 02-36436, Adv. Nos. 03-940, 03-942, 2008 WL 2370169, at *9 (Bankr.
E.D. Pa. Apr. 22, 2008). Instead, courts consider various factors, or "badges of fraud," in
determining whether fraud has been proven by circumstantial evidence. In re Am. Rehab &
Physical Therapy, Inc., Bankr. No. 04-14562, Adv. No. 04-847, 2006 Bankr. LEXIS 1440,
at *49, [WL], at *15-16 (Bankr. E.D. Pa. May 18, 2006). One such badge of fraud is
insolvency of the debtor, but not all badges of fraud need to be shown to prove a claim of
actual fraud. In re Valley Bldg. & Constr. Corp., 435 B.R. at 286 [*10] (detailing 11 badges
of fraud courts may consider in determining actual intent, not all of which must be proven
to support a claim of actual fraud, and noting this list is "non-exhaustive"); In re Fedders
N.Am., Inc., 405 B.R. 527, 545 (Bankr. D. Del. 2009) ("The presence or absence of any
single badge of fraud is not conclusive." (citation omitted)). Thus, while insolvency of the
debtor is a factor that may support a claim for actual fraud, it is not an essential element of
such a claim. The third type of claim brought by Trustee Carroll sought to recover
unauthorized post-petition transfers from Jeffrey Prosser to his wife, pursuant to 11 U.S.C.
§549, which permits a trustee to avoid transfers of property belonging to the estate that
occur after the commencement of the case and are not authorized under the Bankruptcy
Code or by the Bankruptcy Court. 11 U.S.C. § 549(a); see also In re Pa. Gear Corp., 2008
WL 2370169, at *6. To prevail on this type of claim, a trustee must show that after the
commencement of the case at issue, property of the estate was transferred, and the
transfer was not approved by the Bankruptcy Court or any provision of the Code. 11
rig
U.S.C. § 549; In re PSA, Inc., 335 B.R. 580, 584-85 (Bankr. D. Del. 2005).
Insolvency is thus not a required element for this type of claim either. See In re Kennesaw
Mint Inc., 32 B.R. 799, 803 (Bankr. N.D. Ga. 1983) ("Section 549(a) does not require the
trustee to prove insolvency in order to avoid post-petition transfers.").
Moreover, the jury instructions for all three claims brought by Trustee Carroll, which were
agreed upon by all parties in this case, are consistent with this law. See Trial Tr. 158-162,
June 9, 2011 (instructing jury, as to the first type of fraudulent transfer claim, that
"[a]Ithough the intent to hinder, delay, or defraud a creditor is often difficult to prove by
direct evidence, certain fact patterns, or badges of fraud, will usually show fraudulent
intent. When seeking to avoid a fraudulent transfer on the basis of actual fraud, a trustee
must prove a "goodly" number of badges of fraud. No one particular badge of fraud must
be proven to demonstrate intent to hinder, delay, or defraud" (and listing various badges of
fraud, including insolvency of debtor)); id. at 163 (instructing, as to the second type of
fraudulent transfer claim brought by Trustee Carroll pursuant to United States Virgin
[*1
Islands law, that the jury "must find that 2] transfers were fraudulent if Trustee Carroll
has proved that Dawn Prosser received or was the beneficiary of certain transfers of
property of Jeffrey Prosser, and each of those transfers was made with the actual intent to
hinder, delay, or defraud then present or future creditors"); id at 166 (instructing jury, as to
me third type of fraudulent transfer claim brought by Trustee Carroll, that "[i]n order for
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Trustee Carroll to recover from Dawn Prosser[] on Trustee Carroll's post-petition transfer
claims based on Section 549 of the Bankruptcy Code, you must find Trustee Carroll has
proved the following three elements by a preponderance of the evidence. One, Dawn
Prosser received or was the beneficiary of certain transfers of property of Jeffrey Prosser.
Two, such transfers were received after the petition date of Jeffrey Prosser. Three, such
transfers were not approved by the Bankruptcy Court or authorized by the Bankruptcy
Code"). Given that Trustee Carroll did not need to prove insolvency of the Debtor at the
time of each transfer, Prosser's argument fails, and based on the entire record before this
Court, Prosser's motion for judgment as a matter of law is denied.
r13]
Alternatively, Prosser argues she is entitled to a new trial pursuant to Federal Rule
of Civil Procedure 59(a) because the jury verdict is unsupportable and because judgment
should be entered in favor of Prosser. Rule 59 provides, "[t]he court may, on motion, grant
anew trial on all or some of the issues ... after a jury trial, for any reason for which a new
trial has heretofore been granted in an action in federal court." FED. R. Civ. P. 59(a)(1).
Generally, a district court may grant a motion for new trial pursuant to Rule 59 "if it
determines that the verdict is inconsistent with substantial justice beeause the verdict is
against the weight of the evidence; the damages are excessive; the trial was unfair; or that
substantial errors were made in the admission or rejection of evidence or the giving or
refusal of instructions." Younis Bros. & Co. v. CIGNA Worldwide Ins. Co., 899 F. Supp.
1385, 1397 (E.D.Pa. 1995) (internal quotation marks omitted) (quoting Ne. Women's Or.,
Inc. v. McMonagle, 689 F. Supp. 465 (E.D. Pa. 1988), aff'd in relevant part, 868 F.2d 1342
(3d Cir. 1989). The decision to grant a new trial lies within the discretion of the district
court, although "such requests are disfavored." State Farm Mut Auto. Ins. Co. v. Lincow,
715 F. Supp. 2d 617, 626 (ED. Pa. 2010) ["14] (internal citations omitted).
Prosser argues she is entitled to a new trial for essentially the same reasons advanced in
her motion for judgment as a matter of law. Specifically, Prosser argues Trustee Carroll
failed to prove Jeffrey Prosser owned the assets he fraudulently transferred to his wife in
his individual capacity, and not as an officer of his company, and Trustee Carroll did not
prove Jeffrey Prosser was insolvent at the time of each transfer. This motion is therefore
denied for the same reasons that Prosser's motion for judgment as a matter of law was
denied.
An appropriate Order follows.
JULITO A. FRANCIS, Petitioner v. DEBRA L. WRIGHT-
FRANCIS, Respondent
Family No. ST-10-DI-226
Superior Court of the Virgin Islands, Division of St. Thomas
and St. John
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2014 V.I. LEXIS 45; 61 V.I. 13
July 14, 2014, Decided
July 14, 2014, Filed
CASE SUMMARY:
OVERVIEW: HOLDINGS. [1]-When the parties had lived in the marital home for 7 years of
their 21-year marriage, the husband's mother occupied an apartment on the property, the
wife had the means to secure alternative housing and had not shown the need or desire to
remain there. and the husband acquired the property...Lam his mother, the husband was
awarded possession under V.I. Code Ann. tit. 33. §IM(d). minus an award to the wife for
her interest and contributions: [2]-The wife's medical degree was not marital property
under V.I. Code Ann. tit. 16. § 109, as the husband had not been compelled to delay or
relinquish his own education or goals, offered no evidence with which to calculate the
value of the degree. and himself had an advanced degree: (3J-The husband had not
wasted marital assets by withdrawing funds from his annuity. as they were used to pay
reasonable and necessary expenses.
OUTCOME: The court distributed the parties' marital homestead and personal property.
CORE TERMS: marital, homestead, marriage. divorce, dollars. equitable, marital property,
personal property, pension, spouse's, career, educational, apartment, retirement accounts,
daughter, couple, mortgage, real property, retirement plans, divide, standard of living,
ownership, household, jointly, dissolution, retirement, terminated, occupied, earnings, net
worth
LexisNexis(R) Headnotes
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Equitable Distribution > General Overview
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Partition
Civil Procedure > Judicial Officers > Judges > Discretion
[HN1) In an action for divorce, the court has the authority to equitably divide joint personal
property •eal property, limited to the marital homestead as defined in V.I. Code Ann.
tit. 33, § (d). Real property owned by the couple, other than the marital homestead, is
divided by way of a civil partition action. When determining the equity of the distribution,
the court also has broad discretion to consider the case's most salient facts. The Supreme
Court of the Virgin Islands further refined the court's discretion to divide property by
eliminating marital fault as a factor in dividing the homestead. The doctrine of equitable
distribution is applied to effectuate a fair and just division of the property between the
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parties. As its name suggests, equitable distribution does not necessarily mean "equal,"
only "equitable."
Family Law > Marital Duties & Rights > 12toaerty Rights > Homestead Rights
[HN2I Pursuant to V.I. Code Ann. tit. 33, §=(a). a homestead is defined as the abode
including land and buildings, owned by, and actually occupied by, a person, or by
members of his family free of rental charges. Although the Virgin Islands Code does not
expressly define a marital homestead, both the United States Court of Appeals for the
Third Circuit and the Appellate Division of the United States District Court for the Virgin
Islands have interpreted § (a), (c) to hold that a "marital homestead" is any
homestead in which a husband and wife both reside during the marriage and that is owned
by one or both of the spouses.
Civil Procedure > Judicial Officers > Judges > Discretion
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Characterization > Marital Property
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Characterization > Separate Property
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Equitable Distribution > General Overview
[HN3I The court may distribute personal property in accordance with V.I. Code Ann. tit. 16,
§ 109(4). However, the statute does not define marital property. Whether an asset is
marital property or separate property for purposes of distribution of the marital estate is a
matter reserved to the sound discretion of the trial court. Once these distinctions have
been made, the trial judge has broad equitable powers in disposing of marital property.
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Characterization > Marital Property
[HN4I Although not specifically defined, marital property has been construed to encompass
any property which the couple acquired during the marriage and which is subject to
equitable distribution upon divorce.
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Characterization > Marital Property
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Classification > Retirement Benefits > Pensions
[HN51 Considering the tremendous statutory examples and case law from other
jurisdictions holding pension funds as marital property, the Virgin Islands has determined
that a pension fund is marital personal property, subject to claim by the other spouse upon
divorce. To the extent earned during the marriage, the pension benefits represent
compensation for marital effort and are substitutes for current earnings which would have
increased the marital standard of living or would have been converted into other assets
divisible at dissolution. Subjecting the benefits to division is just, because in most cases
the retirement benefits constitute the most valuable asset the couple has acquired and
they both have relied upon their pension payments for security in their older years.
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Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Classification > Degrees, Licenses & Enhanced Earnings
[HN6I Most states hold that an educational degree is not marital property. Courts have
consistently considered whether one spouse had postponed his or her own career and
educational goals to support and contribute to the career and educational goals of the
other spouse. They also acknowledge the injustice that occurs after a couple collectively
works towards the attainment of an advanced educational degree or career goal, the
expectation of a higher standard of living in the future can be frustrated by the dissolution
of a marriage.
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > Classification > Degrees, Licenses & Enhanced Earnings
[HN7I Many states have compared professional degrees to pension or retirement plans
when establishing what constitutes marital property. Pension and retirement plans entitle
an owner to a definite amount at a certain date, which an individual has a contractual right
to receive. Professional degrees rely on uncertain future events and provide only an
expectation of enhanced income. The value of a professional degree is speculative and
dependent upon the attributes and future choices of its possessor to be fairly valued.
Family Law > Marriage > General Overview
[HNBI The Virgin Islands has long viewed marriage as a partnership or joint venture,
whereby both parties collaborate for a common purpose and contribute toward its success.
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Jurisdiction > General Overview
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce >
Property Distribution > General Overview
[HN9I The court has the authority to divide the personal property in divorce action even
after a divorce decree has been issued. The trial court will be required to issue rulings on
post-divorce ownership of personal property such as cars, boats, electronics, jewelry,
shares of stock, bonds and monies deposited with financial institutions.
Civil Procedure > Sanctions > Contempt > Civil Contempt
[HN10] A party may be held in civil contempt for failure to comply with a court order if (1)
the order the contemnor failed to comply with is clear and unambiguous, (2) the proof of
noncompliance is clear and convincing, and (3) the contemnor has not diligently attempted
to comply in a reasonable manner.
SUMMARY: Division of property in divorce case. The Superior Court, Watlington, J.,
divided the parties' real and personal property.
HEADNOTES
VIRGIN ISLANDS OFFICIAL REPORTS HEADNOTES
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(Headnotes classified to Virgin Islands Digest]
1. Divorce § 11.50--Division of Property--Power of Court In an action for divorce, the
court has the authority to equitably divide joint personal property and real property, limited
to the marital homestead. Real property owned by the couple, other than the marital
homestead, is divided by way of a civil partition action. When determining the equity of the
distribution, the court also has broad discretion to consider the case's most salient facts.
The Supreme Court of the Virgin Islands further refined the court's discretion to divide
property by eliminating marital fault as a factor in dividing the homestead. The doctrine of
equitable distribution is applied to effectuate a fair and just division of the property between
the parties. As its name suggests, eqiaole distribution does not necessarily mean
"equal," only "equitable." 33 V.I.C. § (d).
2. Property § 15.05--Homestead--Generally A homestead is defined as the abode
including land and buildings, owned by, and actually occupied by, a person, or by
members of his family free of rental charges. Although the Virgin Islands Code does not
expressly define a marital homestead, both the United States Court of Appeals for the
Third Circuit and the Appellate Division of the United States District Court for the Virgin
Islands have interpreted the applicable statute to hold that a "marital homestead" is any
homestead in which a husband and wife both reside during the marriage and that is owned
by one or both of the spouses. 33 V.I.C. § a), (c).
3. Property § 15.30--Homestead--Divorce When the divorcing parties had lived in the
marital homestead for 7 years of their 21-year marriage, the husband's mother occupied
an apartment on the property, the wife had the means to secure alternative housing and
had not shown the need or desire to remain there, and the husband had acquired the
["14] property from his mother, the husband was awardaossession, minus an award
to the wife for her interest and contributions. 33 V.I.C. §
4. Divorce § 11.50--Division of Property--Power of Court The court may distribute
personal property in accordance with the statute governing final orders in divorce cases.
However, the statute does not define marital property. Whether an asset is marital property
or separate property for purposes of distribution of the marital estate is a matter reserved
to the sound discretion of the trial court. Once these distinctions have been made, the trial
judge has broad equitable powers in disposing of marital property. 16 V.I.C. § 109.
5. Divorce § 11.70--Division of Property--Types of Property Interests Although not
specifically defined, marital property has been construed to encompass any property which
the couple acquired during the marriage and which is subject to equitable distribution upon
divorce.
6. Divorce § 11.45--Division of Property--Pensions Considering the tremendous
statutory examples and case law from other jurisdictions holding pension funds as marital
property, the Virgin Islands has determined that a pension fund is marital personal
property, subject to claim by the other spouse upon divorce. To the extent earned during
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the marriage, the pension benefits represent compensation for marital effort and are
substitutes for current earnings which would have increased the marital standard of living
or would have been converted into other assets divisible at dissolution. Subjecting the
benefits to division is just, because in most cases the retirement benefits constitute the
most valuable asset the couple has acquired and they both have relied upon their pension
payments for security in their older years.
7. Divorce § 11.40--Division of Property--Particular Cases When neither party had
made sufficient information available to the court to justify the division of their respective
retirement accounts, but it appeared that they had about the same amount in their funds,
each party was entitled to retain his or her existing interest in his or her account. 16 V.I.C.
§ 109.
8. Divorce § 11.70--Division of Property--Types of Property Interests Most states hold
that an educational degree is not marital property. Courts have consistently considered
whether one spouse had postponed his or her own career and educational goals to
support and contribute to the career and educational goals of the other spouse. They also
acknowledge the injustice that occurs after a couple collectively works towards the
attainment of an advanced educational degree or career goal, the expectation of a higher
["15]
standard of living in the future can be frustrated by the dissolution of a marriage.
9. Divorce § 11.70--Division of Property--Types of Property Interests Many states
have compared professional degrees to pension or retirement plans when establishing
what constitutes marital property. Pension and retirement plans entitle an owner to a
definite amount at a certain date, which an individual has a contractual right to receive.
Professional degrees rely on uncertain future events and provide only an expectation of
enhanced income. The value of a professional degree is speculative and dependent upon
the attributes and future choices of its possessor to be fairly valued.
10. Divorce § 11.40--Division of Property--Particular Cases The wife's medical degree
was not marital property subject to equitable distribution, as the husband had not been
compelled to delay or relinquish his own education or goals, he offered no evidence with
which to calculate the value of the degree, and he himself had an advanced degree. 16
V.I.C. § 109.
11. Marriage § 1.50--Generally--Definition and Nature The Virgin Islands has long
viewed marriage as a partnership or joint venture, whereby both parties collaborate for a
common purpose and contribute toward its success.
12. Divorce § 11.50--Division of Property--Power of Court The court has the authority
to divide the personal property in divorce action even after a divorce decree has been
issued. The trial court will be required to issue rulings on post-divorce ownership of
personal property such as cars, boats, electronics, jewelry, shares of stock, bonds and
monies deposited with financial institutions.
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13. Divorce § 11.40--Division of Property—Particular Cases Although there was some
evidence that the husband in a divorce case withdrew $220,179.93 from his annuity
between 2011 and 2012, there was no evidence that he deliberately destroyed, concealed
or harmed the parties' property. The money was used to pay reasonable and necessary
expenses, including expenses associated with his children's care, the marital homestead,
businesses and living expenses; furthermore, the husband had been terminated from his
employment and used his investments to support his obligations and standard of living.
14. Contempt § 5.10—Noncompliance With Court Order--Generally A party may be
held in civil contempt for failure to comply with a court order if (1) the order the contemnor
failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and
convincing, and (3) the contemnor has not diligently attempted to comply in a reasonable
manner.
COUNSEL: rli ANDREW L. CAPDEVILLE, Eso., Law Offices of Andrew Capdeville, St.
Thomas, USVI, Attorney for the Petitioner.
[**16] JULIE GERMAN EVERT, Ext., Law Offices of Julie German Evert, St. Thomas, USVI,
Attorney for the Respondent.
JUDGES: WATLINGTON, Judge of the Superior Court of the Virgin islands
OPINION BY: DEBRA S. WATLINGTON
OPINION
MEMORANDUM OPNON
1.1tey 14.2014)
This matter came on for a trial on April 8, 2014, before the Honorable Debra S. Watlington,
Judge of the Superior Court of the Virgin Islands for the determination of the parties'
personal property and the marital homestead. Petitioner/Husband Mr. Julito A. Francis
appeared with counsel Andrew L. Capdeville, Esq., and Respondent/Wife Dr. Wright-
Francis appeared with counsel Julie German Evert, Esq., The Court heard sworn
testimony from Mr. Francis, Dr. Wright-Francis, Mrs. Joan Francis, and Erica Kellerhals,
Esq.
1 Julie German Evert. Esq., entered her notice of appearance in this matter on behalf of Or. Wright Francis on February 12.
2014. Vincerd k Fuller, Esq.. was the attorney of record at the previous hearing.
PREUM1NARY MATTERS
Prior to commencing the trial, the Court addressed stipulations and outstanding motions of
both parties. The [* 2] parties stipulated to the admission of Civil Complaint, ST-14-CV-
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188, Balbo Corporation v. Julito Francis & Debra Francis, filed by Mr. Gerard Castor.
However, they do not stipulate or concede to the amount of monetary relief alleged in the
pleading.= The parties also stipulated that the marital homestead, IB-29 Estate Solberg, St.
Thomas, U.S. Virgin Islands, is valued at Seven Hundred Twenty Five Thousand Dollars
($725,000.00) subject to a mortgage of One Hundred Ten Thousand Dollars
($110,000.00). The parties further stipulated that the Court may make its determination of
[**17] jointly owned marital household furniture based on evidence submitted from the
January 13, 2014 hearing.=
2 Gerald Castor is the owner of Balbo Construction which performed construction work for the parties on the marital homestead
located at 16-29 Estate Solberg. In the civil action. Balbo alleges that the parties are liable for outstanding payments amounting
to Three Hundred Ninety Six Thousand. Five Hundred Forty Four Dollars and Seventy Six Cents (5396.544.76).
3 This matter came before the Court for a final hearing on January 13 2014. to resolve the outstanding issues regarding
distribution of personal property.
r31
Thereafter, the pending motions were addressed as follows: 1) Dr. Wright-Francis'
Motion to Exclude Gerard Castor's testimony was rendered moot in light of the parties'
stipulation; 2) the Court denied Dr. Wright-Francis' Motion to Exclude Mr. Francis and his
mother, Joan A. Francis, from testifying that she has an interest in the parties' marital
homestead; 3) the Court denied Mr. Francis' request to exclude the expert testimony and
report of Attomey Erika Kellerhals; 4) the Court denied Dr. Wright-Francis' Motion to
Exclude Mr. Francis from testifying that he is entitled to money from her earnings; and 5)
the Court granted Dr. Wright Francis' Motion to Exclude testimony concerning the value of
the parties' real and personal property located in the state of Georgia.
4 The Court's jurisdiction in this matter is limited to jointly owned personal property and the marital homestead.
UNDISPUTED FACTS
The parties, Mr. Julito Francis and Dr. Debra Wright-Francis, were married on August 17,
1991 in Opelika, Alabama. They have one minor child, Brooklyn J. Francis, born on March
6, 2000 and one adult daughter, Saryn J. Francis, born on January 27, 1993. The parties
both resided in Georgia until [*4] Mr. Francis relocated in 2004 to St. Thomas; while Dr.
Wright-Francis and their daughters joined him in 2005. The parties resided at No. IB-29
Estate Solberg, St. Thomas, Virgin Islands during their marriage. A Decree of Divorce was
entered on July 25, 2012, dissolving the marriage.
Mr. Francis is the son of Joan Francis and brother to Diane A. Marsh. Joan Francis and
her daughter, Diane, acquired the property known as 1B-29 Estate Solberg from the Virgin
Islands Housing Finance Authority which required them to build on the land within a set
time period. After realizing that they would not be able to comply with program regulations,
they transferred ownership to Mr. Francis to begin construction to help secure financing to
build. Mr. Francis' mother and sister conveyed Parcel No. IB-29 Estate Solberg to Mr.
Francis and Joan Francis by Warranty Deed on April 12, 1995. Subsequently, on October
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rug
29, 1997, Joan Francis executed a Quitclaim Deed transferring her interest in
Parcel No. IB-29 Estate Solberg solely to Mr. Francis., A dwelling structure was completed
in 1988 which Joan Francis moved into in 2000. At that point, Joan Francis began
rsi
contributing to the mortgage and the utility bill on a monthly basis until 2006. In
January 2014, Joan Francis resumed making contributions of six hundred dollars
($600.00) per month not including utilities.
5 W. Francis filed copies of the 1995 Warranty Deed and 1997 Quitclaim Deed with his exhibit list on March 28. 2014.
No. IB-29 Estate Solberg, is a two (2) level structure and has three (3) units. The upper
level has three (3) bedrooms and two (2) bathrooms and the lower level is split into two (2)
separate one (1) bedroom, one (1) bathroom units. Dr. Wright-Francis continues to occupy
the main level of the marital homestead while Mr. Francis has remained in the one (1)
bedroom unit which he previously used as his office. Joan Francis, resides in the other one
(1) bedroom apartment on the lower level. Mr. Francis is responsible for the mortgage
payments for the property. Dr. Wright-Francis assisted with some maintenance of the
property.
In January 2014, Dr. Wright-Francis purchased an apartment at the Towers
Condominiums in Estate Contant which she uses for rental purposes., The marital
homestead has structure problems and has deteriorated throughout the parties' marriage.'
r6]
Notwithstanding the purported poor condition of the home, Mr. Francis would like to
retain the marital homestead.
6 At. Francis bled a copy of Dr. Wright Francis's Warranty Deed and Mortgage for Apartment No. F-15, The Towers
Condominiums located at No. 7A Southside Quarter, St. Thomas, Virgin Islands, with his Motion to the homestead.
7 Me. Francis' exhibits 10(c), 10(d), 10(e), 10(f). 10(g), 10(k), and 10(m), which were admitted into evidence are photos
depicting the deteriorated state of the home and its structural problems.
The parties acquired multiple assets throughout their marriage in the form of real property
in the Virgin Islands and Georgia; individual retirement accounts; and other investment
accounts. Mr. Francis was employed with the U.S. Virgin Islands Government, first as the
Executive Director of the Public Finance Authority (PFA), then as the Chief Executive
Officer of the Virgin Islands Next Generation Network (VINGN). He was later terminated in
October of 2011 from VINGN where he received an annual salary of One Hundred
r
Seventy One 19] Thousand Dollars ($171,000.00). He challenged his termination but
after an employment mediation, the decision was upheld. After being terminated, Mr.
Francis, an investment manager, has focused on his r7]wealth management business,
known as ACSB Capital Management LLC.
Dr. Wright-Francis, a medical OB-GYN, contracts medical services with the East End
Medical Clinic as an OB-GYN for an annual amount of Two Hundred Thousand Dollars
($200,000.00) and with Schneider Regional Medical Center for about Two Thousand Five
Hundred Dollars ($2,500.00) per-week for on-call services.
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PROCEDURAL HISTORY
Julito Francis filed a verified Petition for Divorce on November 4, 2010. On February 3,
2011, Dr. Wright-Francis filed an answer to Mr. Francis' petition and on March 29, 2011
the Court referred the parties to mediation. The parties mediated but were not able to
reach an agreement. During the mediation period, the parties filed motions concerning
custody and wasting of marital assets. Consequently, the Court issued an Order on
December 22, 2011, prohibiting them from "disrupting" their children and "destroying,
removing, concealing or otherwise harming or reducing the value of the property of one or
both of the parties.". On March 26, 2012, the Court held a final pretrial conference to set
deadlines for trial. The Court also maintained the parties' visitation agreement..
8 See. Paragraph (2) (b) of this Coin's Order in r8) this matter dated December 22. 2011.
9 At. Francis informed the Court. in his Motion to Restrain Respondent From Denying Petitioner Access to Former Marital
Residence that the parties negotiated a visitation agreement in September of 2011, whereby both parties have custody of their
minor daughter. Brooldyn. for fifteen (15) days of each month. Such agreement was not contested by Dr. Wright Francis.
On July 16, 2012, Dr. Wright-Francis filed an Emergency Motion for Issuance of Show
Cause Order, alleging that Mr. Francis violated the Court's December 22, 2011 Order by
withdrawing Two Hundred Twenty Thousand, One Hundred Seventy Nine Dollars and
Ninety Three Cents ($220.179.93) from his Fidelity Rollover IRA account. While the Court
initially granted Dr. Wright-Francis' motion on July 17, 2012, that Order was later vacated
on July 25, 2012. The Court reasoned that it was not able to make a determination since
discovery had not been completed. ("20] Instead, the Court instructed the parties to
retain a Certified Personal Accountant (CPA) to appraise all of their jointly owned
properties and to recommend how the marital assets should be divided. The parties never
complied with the order to retain r 9] an accountants.
10 See Court's July 25. 2012 Order.
On July 25, 2012, the Court issued a Divorce Decree to the parties and reserved
determination on issues of custody, alimony, personal and real property for a later date.
Meanwhile, the parties continued to live in separate sections of the marital homestead.
During a June 17, 2013 hearing, the parties informed the Court that they were able to
resolve the issues of custody and visitation amicably, consistent with their earlier
agreement. On July 12, 2013 the parties were referred back to mediation. After the second
mediation session, the mediator reported that the parties had reached a total impasse.
However, in a status conference held on September 10, 2013, the parties advised the
Court that they had reached an agreement and through counsel, the terms were read onto
the record. Each party confirmed that the terms were accurate and they agreed to them.
The Court acknowledged the terms and ordered counsel for both parties to reduce the
agreement to writing and submit it with their client's respective signatures. Instead each
party submitted separate draft settlements that differed slightly from the oral agreement
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articulated in Court. As a rloi result, the Court entered an Order on November 4, 2013
that incorporated the negotiated terms which the parties stipulated to on the record in the
September 10, 2013 hearing. On November 18, 2013, this Court entered an Order which
granted a Motion to Amend filed by Dr. Wright-Francis. The Order amended the previous
November 4, 2013 Order which instructed Mr. Francis to pay his settlement amount by
certified check or bank draft instead of transferring the sum from his retirement account
directly to Dr. Wright-Francis' account or to her personally by electronic means. Mr.
Francis objected to Dr. Wright-Francis' method of payment request, filed a timely
opposition on November 20, 2013, and requested the Court to reconsider its Amended
Order entered on November 18, 2013.11
11 On November 18.2013 the Court entered an Order on Dr. Wright-Francis's November 6. 2014 Motion to Amend. two (2)
days before the fourteen (14) day statutory period for Mr. Francis to respond ended. pursuant to Rule 15(b)(3) of the Federal
Rules of Civil Procedure. Mr. Francis Ned his opposition to the Motion to Amend on November 20. 2013.
[**21] Having reviewed the parties conflicting requests, the Court vacated its November
18, 2013 Order because it found that the parties' settlement rig agreement lacked
mutual assent since the parties could not agree on the method of payment. The parties
also claimed that they would incur injury if payment was not made as each requested. The
Court determined that the parties negotiated and accepted the agreement based on two
(2) different interpretations of its terms. As a result, this matter was scheduled for trial.
Subsequently, Mr. Francis moved the Court on February 12, 2014 for permission to return
to the marital homestead since his existing apartment poorly accommodated him and his
daughter for their monthly visitation and Dr. Wright-Francis had recently purchased
property on St. Thomas.
THE PARTIES' ARGUMENTS
Mr. Francis advised the Court that he is solely responsible for the mortgage on 1B-29
Estate Solberg.,, Mr. Francis also informed the Court that he paid all of the household
expenses without any contribution from Dr. Wright-Francis and continues to pay those
expenses. He also claims that he has made payments on the balance owed to Balbo for
construction work on IB-29 Estate Solberg.
12 The mortgage for the Solberg property stipulates that only Mr. Franca signed the promissory note despite both parties being
listed on the document ri2] as "Borrower?
Mr. Francis seeks a portion of Dr. Wright-Francis' current and future earnings since he
claims that he supported her financially while she completed medical school in 1992. As a
result, Mr. Francis asserts that Dr. Wright-Francis' medical license is marital property
which is divisible like the parties' other assets.
Additionally, Mr. Francis contends that Dr. Wright-Francis' net worth is Two Million One
Hundred Three Thousand, Eight Hundred Fifty Seven Dollars and Twenty Four Cents
($2,103,857.24). He claims that his net worth is One Million One Hundred Nine Thousand,
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Nine Hundred Twelve Dollars and Eighty Two Cents ($1,109,912.82). Mr. Francis seeks
Four Hundred Ninety Six Thousand Dollars ($496,000.00), to make his r221 net worth
equal to Dr. Wright-Francis.* Mr. Francis also expressed a willingness to rescind his
request, if Dr. Wright-Francis relinquishes her interest in the marital homestead.
13 It the Court were to add both of the parties' purported net worth, divide them in half, arid then subtract Mr. Francis individual
net worth it would amount to 5495.000.00.
Mr. Francis denied accusations of depleting any marital property. Instead, Mr. Francis
[.13]
contends that he withdrew money from his retirement account to pay off expenses,
including mortgage payments, other property expenses and travel expenses back and
forth to Washington D.C. where he visits with the parties' older daughter and cultivates
business for his company, ACSB Capital Management LLC.-
14 The parties' older daughter. Saryn J. Francis. born on January 27. 1993, is an undergraduate student at Howard University
located in Washington. D C.
The Court also heard sworn expert testimony from Erika Kellerhals, Esq., (hereafter
Kellerhals) on behalf of Dr. Wright-Francis. Kellerhals testified that she analyzed Mr.
Francis' financial records. She advised the Court that she submitted her findings in two (2)
reports: the first one analyzed Mr. Francis' bank accounts, investments, credit cards and
retirement account and the second report assessed the financial reports Mr. Francis
submitted to the Court as exhibits for trial.* Kellerhals testified that the records she
received from Mr. Francis were incomplete and that it appears that Mr. Francis was
commingling funds since she was not able to distinguish between his personal and
business expenditures. Kellerhals also refuted Mr. Francis' claim that he has been [14]
cultivating business in Washington, D.C. since his records do not show evidence that he
has any clients outside the territory of the U.S. Virgin Islands. With respect to the money
owed to Balbo, Kellerhals testified that financial records show that Mr. Francis has paid
Balbo about Fifteen Thousand Dollars ($15,000.00) and Dr. Wright-Francis has paid
approximately Thirty Thousand Dollars ($30,000.00).
15 Kellerhals' Curriculum Vitae reflects her education and expertise in legal tax related assessments and financial analyses.
Kellerhals claim that although in deposition Mr. Francis submitted incomplete bank account
information to 2011-2012,* she found that Mr. Francis spent approximately One Hundred
Seventeen Thousand Five ["23] Dollars and One Cent ($117,005.01)." For the year
2012, Mr. Francis submitted his 1040 tax form, and again, Kellerhals found that Mr.
Francis spent about One Hundred Seventy Nine Thousand Twenty One Dollars
($179,021.00).*
16 Mr. Francis submitted Fidelity IRA and 401K statements for December 2011-February 2012. April 2012-May 2012: Charles
Schwab IRAstatements for November 2012-December 2012; an AmEx credit card spending report for the year of 2011; and
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(16]
Marriott Credit Card statements for December 24. 2011-December 23. 2012 Mr. Francis also submitted Texas Credit
Union statements for December 2012-January 2013 and Banco Popular statements for March-May 2013. which are outside the
scope of investigation.
17 See. Respondent's Exhibit 3A
18 See. Respondent's Exhibit 3A
Kellerhals concluded that Mr. Francis' spending habits increased drastically since the
parties divorced on July 25, 2012, in violation of the Court's December 22, 2011 Order.
Kellerhals opined that: 1) retirement funds are marital assets; 2) Mr. Francis' wasted
marital assets by withdrawing money from his annuity early to cover his excessive
spending in the amount of Two Hundred Twenty Thousand One Hundred Seventy Nine
Dollars and Ninety Three Cents ($220,179.93); and 3) that Dr. Wright-Francis is entitled
one half of the 'Wasted" amount of about One Hundred Ten Thousand and Ninety Dollars
($110,090.00).
Dr. Wright-Francis testified that Mr. Francis is not entitled to earnings resulting from her
medical degree because the parties, collectively, paid off student loans by selling stocks
that were jointly purchased. Dr. Wright-Francis also testified that she obtained her degree
in 1992, just a year after [16] the parties were married. Dr. Wright-Francis further
contends that she did not work for one (1) year in order to care for the parties' children in
the early years. She contends that except for approximately two (2) to four (4) years, the
parties' income were comparable. She confirmed her work contracts with the East End
Medical Clinic and the Schneider Regional Medical Center.
Dr. Wright-Francis acknowledged the purchase of a unit at the Towers Condominiums in
Estate Contant on January 17, 2014, for which she currently collects a monthly rent. She
confirmed that she continues to reside at IB-29 Estate Solberg with the parties' minor
daughter.
Dr. Wright-Francis informed the Court that she is seeking half of the value of the parties'
marital homestead located at IB-29 Estate Solberg and half of the value of what Mr.
Francis "wasted." She contends that Joan Francis does not have any ownership interest in
the Solberg property ["24] and that the homestead should be sold if Mr. Francis is not
able to buy her out.
ANALYSIS
[1] [HN1] In an action for divorce, this Court has the authority to equitably divide joint
personal orooerty and real property, limited to the marital homestead as defined in Title 33
raj
V.I.C. § Ml(d). Bradford v. Cramer, 54 V.I. 669, 676 (V.I. 2011). Real property
owned by the couple, other than the marital homestead, is divided by way of a civil
partition action. Fuentes v. Fuentes, 38 V.I. 29, 1997 WL 889532 (Terr. V.I. 1997). When
determining the equity of the distribution, the Court also has broad discretion to consider
the case's most salient facts. Charles v. Charles, 788 F.2d 960, 965 (3rd Cir. 1986). The
Supreme Court of the Virgin Islands further refined the Court's discretion to divide property
by eliminating marital fault as a factor in dividing the homestead. Garcia v. Garcia, 59 V.I.
758 (V.I. 2013). "The doctrine of equitable distribution is applied to effectuate a fair and
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just division of the property between the parties. As its name suggests, equitable
distribution does not necessarily mean 'equal,' only 'equitable.' " Fuentes, 38 V.I. at
40, 1997 WL 889532, at *5 (emphasis added).
A Mantel Homestead
[2] [HN2] Pursuant to Title 33 V.I.C. § a), a homestead is defined as "the abode
including land and buildings, owned by, and actually occupied by, a person, or by
members of his family free of rental charges." The Court in Garcia quoted Harvey v.
Christopher, to explain that although the Virgin Islands Code does not expressly define a
'marital homestead,' both the United States Court of Appeals for the Third Circuit and the
Appellate Division of the District Court interpreted Title 33 V.I.C. §§-(a), (c) to hold
that a "marital homestead' is any 'homestead' p18] in which a husband and wife both
reside during the marriage and that is owned by one or both of the spouses." Garcia, 59
V.I. 758 (V.I. 2013) quoting, Harvey v. Christopher, 55 V.I. 565, 572 (V.I. 2011).
Pursuant to the parties' stipulation, IB-29 Estate Solberg is valued at Seven Hundred
Twenty Five Thousand Dollars ($725,000.00) subject to a One Hundred Ten Thousand
Dollars ($110,000.00) mortgage. Although the parties dispute the amount owed to Balbo,
they acknowledge that [**25] Balbo Construction is owed money for work it has done on
the homestead:0
19 See Civil Complaint. Balbo v. Julito Francis & Debra Francis. ST-14-CV-188
Testimony revealed that Dr. Wright-Francis assumed responsibility for the children's
school tuition and cost of other activities during the course of their marriage. Mr. Francis
satisfied almost all expenses related to their home including the mortgage property and
home insurance payments. Since the parties' divorce, the parties have shared equally their
children's expenses and Mr. Francis has continued to pay all real property expenses.
Here, the home located at IB-29 Estate Sit, St. Thomas appears to satisfy the
requirements outlined in Title 33 V.I.C. § a) since Mr. Francis gained ownership
rights when: 1) his mother and sister conveyed the property to him and 2) [*19] the parties
resided in the home from 2005 until they terminated their marriage in 2012. However, the
Supreme Court, through Garcia, required that further examination is needed when a
purported marital homestead is comprised of multiple units like the Solberg property.
In Garcia, the parties resided in a two level structure that was partitioned of into four (4)
separate independent apartments. The wife argued that the marital homestead constituted
all four (4) apartments and consequently, she was entitled to an equitable portion of the
homestead. The husband opined that all of the apartments should not count towards the
homestead since "(1) it had a dual nature, as portions of the building were rented to
tenants, and (2) although Felipe and Edna resided there at some points during their
marriage, there were large spans of time during which the parties did not occupy it
together." 59 V.I. 758 (V.I. 2013). Ultimately, the Garcia Court remanded the matter back
to the Superior Court for further consideration without determining which units comprised
the marital abode.
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Here, the Solberg property is apportioned into three (3) units. The parties resided in the
r20]
larger unit with their daughters for approximately seven (7) years while Mr. Francis'
mother lived in a smaller unit. The third unit was used as a home office by Mr. Francis,
until he started to use it as his living quarters after the parties divorced. Unlike Garcia, the
parties did not use their other units as rental property to produce income. Mr. Francis
r.26]
asserted that Joan Francis contributed to her household expenses for a portion of
the time she has lived there. It is also important to note that Mr. Francis' mother resided on
the property first and has been the only other resident.
[3] The Court has considered that the parties resided in the Solberg home from 2005-2012
for approximately seven (7) of their twenty one (21) years of marriage with their children.
Mr. Francis' mother has occupied an attached apartment on the same property since 2000.
They have all contributed in various degrees to the subject property. Both parties are
clearly capable of providing for themselves and their children, as they are both
accomplished professionals and have already agreed to share equally in the costs of
raising their children. Dr. Wright-Francis obviously has the capacity and means to secure
[*
alternative housing; and has neither demonstrated a need 21] or desire to remain in the
marital homestead.
This Court cannot disregard the fact that neither party purchased the real property upon
which the marital homestead was built. Much consideration is given to the fact that Mr.
Francis acquired the property from his mother to help her construct a home for her to live.
While evidence shows that the parties together were able to finance the construction, they
benefitted by living on the property with their children for seven (7) years of their twenty-
one (21) years of marriage. Joan Francis has lived in an adjoining apartment for
approximately fourteen (14) years. Thus, only the main residential unit (inclusive of what
was the home office and children's area) that the parties occupied during their marriage
constitute the marital homestead and not the entire property known as IB-29 Estate
Solberg.
In view of the circumstances surrounding the acquisition and construction of IB-29 Solberg,
maintenance and occupancy of said property, the Court finds that based on a balancing of
equities, Mr. Francis should retain possession of the marital homestead. Moreover, having
considered the stipulated assessed value of the real property, and the debts associated
[*22]
with the property, and given serious consideration to the equities involved under the
particular facts herein, the Court has determined that Dr. Wright-Francis has a thirty-five
percent (35%) interest in the marital homestead which constitutes approximately seventy
percent (70%) of the developed property. As a result Seventy Six Thousand, Six Hundred
Fifty Dollars ($76,650.00) plus $30,000.00 reimbursement for moneys expended for
constructions costs represents a fair award to [**27] Dr. Wright-Francis for her
contributions and interest in the marital homestead. Thus, Mr. Francis will be required to
pay Dr. Wright Francis a total of One Hundred Six Thousand, Six Hundred Fifty Dollars
($106,650.00).
0. Personal Property
[4] [HN3]The Court may distribute personal property in accordance with Title 16 V.I.C. §
109 (4). However, the statute does not define marital property. "Whether an asset is
marital property or separate property for purposes of distribution of the marital estate, is a
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matter reserved to the sound discretion of the trial court." See, Feddersen v. Feddersen,
68 F. Supp. 2d 585, 41 V.I. 230 (D.V.I. 1999). See also, MacAleer v. MacAleer, 1999 PA
Super 35, 725 A.2d 829, 831 (1999). Once these distinctions have been made, the trial
judge has broad equitable powers in disposing of marital property. Fuentes, 38 V.I. at 35,
1997 WL 889532, at '5.
[5] IHN41Although not specifically defined, marital property [e23] has been construed to
encompass any property which the couple acquired during the marriage and which is
subject to equitable distribution upon divorce. See Fuentes v. Fuentes, 247 F.Supp.2d 714
(2003). See, Felix v. Felix, 1998 WL 458499, *2 (D.V.I. 1998). Compare, 16 V.I.C. 68
(defining what constitutes 'separate property of a spouse, not subject to distribution).
I. Equitable Ontlnbutron el flebremenl Accounts
[6] IHN51Considering the tremendous statutory examples and case law from other
jurisdictions holding pension funds as marital property, the Virgin Islands has determined
that a pension fund is also marital personal property, subject to claim by the other spouse
upon divorce. Fuentes, 38 V.I. at 40, 1997 WL 889532, at *8. The Fuentes Court goes on
to rationalize its decision by quoting the Rhode Island Supreme Court in Stevenson v.
Stevenson, 511 A.2d 961, 965 (R.I. 1986):
To the extent earned during the marriage. the (pension) benefits represent compensation for marital effort and are
substitutes for current earnings which would have increased the marital standard of living or would have been
converted into other assets divisible at dissolution. Subjecting the benefits to division is just. because in most cases the
retirement benefits constitute the most valuable asset the potpie has acquired and they both have relied upon their
pension payments for ["28] security in their older years. Nej Family Lew and Practice. § 37.07111 at 37-81 (1985).
Fuentes v. Fuentes, 38 V.I. 29, 1997 WL 889532 (Tern. V.I. 1997). The evidence shows
that Mr. Francis has approximately Five Hundred Thousand Dollars ($500,000.00) in his
retirement account. While, Dr. Wright-Francis has an amount that exceeds Five Hundred
Thousand Dollars ($500,000.00), the exact amount is unknown.
According to the Court in Fuentes, both parties are entitled to an equitable share of the
other's retirement account. The Fuentes Court further explains that there are two (2)
different methods used to determine the percentage which spouses are entitled. The first
method presumes a present value on the retirement plan based on the expected lifespan
of the employee-spouse. Weir v. Weir, 173 N.J. Super. 130, 413 A.2d 638 (1980). This
method requires the Court to determine values contingent on life expectancy and
employee-spouse's share of the retirement pay. Fuentes, 38 V.I. at 41, 1997 WL 889532,
at *7. The second method calculates the percentage that the non-employee is entitled to,
based on length of employment and marriage. They receive benefits when they become
available under the plan. Id. Both methods require basic knowledge of the retirement plans
that includes, but are not limited to the following information: 1) present value; 2) account
history; [e25] 3) retirement plan regulations; and 4) the distribution schedule.
With regard to the retirement accounts, the parties have simply failed to submit sufficient
information for the Court to make a determination. Mr. Francis' submission only
demonstrates the balance of his Fidelity IRA account when the parties dissolved their
marriage in 2012. The Court has no reliable evidence from Dr. Wright-Francis regarding
her retirement fund other than her vague testimony. Neither party has made sufficient
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information available to this Court, to justify the division of their respective individual
accounts.
[7] On July 25, 2012, the Court refused to make a determination on Dr. Wright-Francis'
show cause motion because it lacked sufficient evidence and ordered the parties to
commission a CPA supra. The parties failed to comply. As a result, the record is still void
of evidence of a CPA analysis or recommendation to aid the Court. Kellerhals reports and
testimony are not helpful in this regard since it was designed for the sole purpose of
demonstrating waste of assets by Mr. Francis. Notwithstanding, [**29] it appears that the
parties have approximately the same amount in their funds, or close thereto. Thus, a
division is ["26] unnecessary and each party is entitled to retain their existing interest in
their own accounts.
2 &notable Datinbteson Of The Medical Degree
[8] Mr. Francis requests equitable distribution of Dr. Wright-Francis' medical degree, which
was acquired after one (1) year of marriage. The U.S. Virgin Islands has not previously
decided whether educational or professional degrees constitute marital property.. [HN6]
Most states hold that an educational degree is not marital property. Courts have
consistently considered whether one spouse had postponed his or her own career and
educational goals to support and contribute to the career and educational goals of the
other spouse. See, Mahoney v. Mahoney, 91 N.J. 488, 453 A.2d 527, 531-32 (1982); In re
the marriage of Sally K. Olar, 747 P.2d 676, 678 (1987). They also acknowledge the
injustice that occurs after "a couple collectively works towards the attainment of an
advanced educational degree or career goal," the expectation of a higher standard of living
in the future can be frustrated by the dissolution of a marriage. In re the marriage of Sally
K. 0/ar, 747 P.2d 676, 678 (1987). They also acknowledge that injustice that occurs after
"a couple collectively works towards the attainment of an advanced educational degree or
27]
career goal," the expectation of a higher standard of living in the future by the
dissolution of marriage. In re the marriage of Sally K. O/ar, 747 P2d. 676, 678 (1987).
2O For the purpose of this Order, education and professional degrees will be used interchangeably.
[9] [HN7]Many states have compared professional degrees to pension or retirement
plans when establishing what constitutes marital property. Pension and retirement plans
entitle an owner to a definite amount at a certain date, which an individual has a
contractual right to receive. See, Fuentes, 38 V.I. 29, 1997 WL 889532, at *5-6. See also,
Kikkert v. Kikkert, 88 N.J. 4, 438 A.2d 317 (1981). Professional degrees rely on uncertain
future events and provide only an expectation of enhanced income. The value of a
professional degree is speculative and dependent upon the attributes and future choices of
its possessor to be fairly valued. See, In re the marriage of Sally K. Olar, 747 P.2d 676,
679-80 (1987). See also, Archer v. Archer, 303 Md. 347, 493 A.2d 1074, 1079 [**30]
(1985), citing Deering v. Deering, 292 Md. 115, 437 A2d 883 (1981). See also, Mahoney v.
Mahoney, 91 N.J. 488, 453 A.2d 527, 531-32 (1982).
New York is the only jurisdiction so far to rule professional degrees are marital property
subject to equitable distribution. See, O'Brien v. O'Brien, 66 N.Y.2d 576, 498 N.Y.S.2d
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743, 489 N.E.2d 712 (1985). New York legislation provides that a court consider the efforts
one spouse has made to the other spouse's career. See, N.Y. DoM. REL. LAW § 236(3)(1),
(5). In O'Brien v. O'Brien, the Defendant-wife sought equitable distribution of the
Plaintiff/Husband's license to practice medicine. The Plaintiff commenced the action for
[*
divorce two (2) months 28] after obtaining such license. The Plaintiff began his
postgraduate classes after the parties were married. For the majority of the parties nine (9)
years of marriage, he was working towards a career in medicine. Meanwhile, the
Defendant maintained their household, relinquished her opportunity to further her career,
and provided financially for the parties. The Defendant provided expert testimony
evaluating the present value of the Plaintiff's medical license. O'Brien v. O'Brien, 66 N.Y.2d
576, 498 N.Y.S.2d 743, 489 N.E.2d 712 (1985).
[10] Here, Dr. Wright-Francis acquired her medical degree in 1992, she began working
towards the degree years before the parties were married. There is no evidence that Mr.
Francis was unjustly compelled to delay or relinquish his education or career goals in order
for Dr. Wright-Francis to pursue her goals. Mr. Francis did not provide testimony on the
amount in which he contributed to Dr. Wright-Francis' education. Furthermore, Mr. Francis
does not offer personal or expert testimony on the potential or actual worth of Dr. Wright-
Francis' degree. Two (2) decades have passed since Dr. Wright-Francis received her
medical degree. Mr. Francis failed to provide the Court any substantial or credible
evidence to calculate a value of Dr. [119] Wright-Francis' medical degree.
[11] 01N8] The Virgin Islands has long viewed "marriage as a partnership or joint venture,
whereby both parties collaborate for a common purpose and contribute toward its
success." See, Fuentes v. Fuentes, 247 F. Supp. 2d 714 (2003); Felix v. Felix, 1998 WL
458499, *2 (D.V.I. 1998).
It is important to note that Mr. Francis also received a higher education degree
immediately before the marriage. Mr. Francis acquired his Master's in Business
Administration in 1990 and is admittedly a well-qualified astute financial investment
[*.31]
manager. The parties testified that they supported each other with the help of their
families in the early years of their relationship and marriage. Both degrees provided an
expectancy of a better life, but this was not guaranteed by contract or other form of surety.
Even so, both degrees launched successful and profitable careers for the parties. Both
parties worked throughout the duration of the marriage and contributed financially to the
marriage.
Accordingly, Mr. Francis' evidence and testimony are insufficient to demonstrate that Dr.
Wright-Francis' medical degree is marital property. In this instance, Dr. Wright-Francis'
medical degree is her separate property and is not subject to equitable distribution.
a EquR ad. Oil° IMMO.) r301 of PlautMOICI FuMOur• aria WNW PrOp•rty LOC/Main an Etale soma!,
[12] IHN9] The Court also has the authority to divide the personal property in divorce
action even after a divorce decree has been issued. In Garcia, the Supreme Court explains
that "the Superior Court will be required to issue rulings on post-divorce ownership of
personal property ... such as cars, boats, electronics, jewelry, shares of stock, bonds and
monies deposited with financial institutions ... ." Garcia, 59 V.I. 758.
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This Court is guided by Morris v. Morris, 20 V.I. 249, 1984 WL 998145 (Terr. V.I. 1984),
and in the absence of provable ownership, the Court considers the personal property to be
jointly owned in equal shares. With respect to the disposition of the household furniture,
the evidence satisfies the Court that they are jointly owned by the parties and shall be
distributed as set forth in Appendix A of this Opinion which is incorporated herein.
C. Dota mmotion on Waste or Mama news
In the Order entered by the Court on December 23, 2011, the parties were ordered to
refrain from "destroying, removing, concealing or otherwise harming or reducing the value
of the property of one or both of the parties.", In addition, the parties were authorized to
r3li
engage in acts reasonable and necessary to the conduct of the parties' usual
business and occupation; make expenditures and incur indebtedness for reasonable
attorney's fees: and make expenditures and incur indebtedness for [**32] reasonable and
necessary living expenses for food, clothing, shelter, transportation, and medical care."
21 See. Paragraph (2) (b) of Order dated December 23. 2011
22 rd at Paragraph 5
Dr. Wright-Francis argues that Mr. Francis excessively spent and wasted assets. Dr.
Wright-Francis submitted reports and sworn testimony analyzing Mr. Francis' income and
expenses."
23 See. Respondent's Exhibits 3 and 3A
[13] Although there is some evidence that Mr. Francis withdrew Two Hundred Twenty
Thousand One Hundred Seventy Nine Dollars and Ninety Three Cents ($220,179.93)
between 2011 and 2012, there is no evidence Mr. Francis deliberately destroyed,
concealed or harmed the parties property. The money Mr. Francis withdrew from his
annuity was used to pay expenses, including expenses associated with his children's care,
the marital homestead, businesses and living expenses, they are reasonable and
necessary.• The Court also considers the fact that Mr. Francis was terminated from his
[*32]
employment with VINGN and used his investments to support his obligations and
standard of living.
24 Petitioners bank statements submitted al Deposition show payment to his attorney and reasonable and necessary business
and living expenses
[14] Moreover, the Supreme Court in Walters v. Walters explains that there must be
sufficient evidence that a party intentionally disobeyed a Court order to be held in
contempt. To clarify its position, The Walters Court quotes the Court of the Second Circuit
of Appeals: [HN10] "A party may be held in civil contempt for failure to comply with a court
order if '(1) the order the contemnor failed to comply with is clear and unambiguous, (2) the
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proof of noncompliance is clear and convincing, and (3) the contemnor has not diligently
attempted to comply in a reasonable manner.' " Id. at 352 (quoting Paramedics
Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 655
(2d Cir. 2004)).
Accordingly, it is not unreasonable to expect Mr. Francis to use his available resources to
finance his daily and regular obligations. Dr. Wright-Francis fails to provide clear and
convincing evidence of intent to harm marital assets. For that reason, the Court cannot find
that Mr. Francis excessively spent and wasted marital assets in 2011 and 2012, in violation
of the Court Order entered on December 23, 2011.
CONCLUSION
["
Based 33] on all of the above the Court concludes that both parties individually possess
sufficient financial and professional resources to continue to support themselves and their
children with a standard of living equivalent to that enjoyed during the marriage. Thus, the
post-divorce distribution of the marital homestead and personal property are decided in
accordance with this Memorandum Opinion and the accompanying Order of even date.
ORDERED that a copy of this Order be directed to Andrew L. Capdeville, Esq. and Julie
German Evert, Esq.
*** THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY ' Copyright 2016
CourtLink Corporation
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
(Miami)
Supermarket Source, Inc v. Dolphin Gourmet Market, Inc et al
PLAINTIFF: Supermarket Source, Inc A Florida Corporation
DEFENDANT: Dolphin Gourmet Market, Inc A Foreign Corporation;
Ahmad, Nael Abdel Rahim
DOCKET CASE NUMBER: 1:10cv23986
FILING DATE: 11/4/2010
JURISDICTION: Diversity
JUDGE: Graham, Donald L
NATURE OF SUIT: 190 Other Contract
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Supermarket Source, Inc v. Dolphin Gourmet Market, Inc et al 1:10cv23986
FILING TYPE: Civil
CAUSE: Diversity-Breach of Contract28 USC 1332
JURY DEMAND: None
STATUS: Case Closed
PLAINTIFF ATTORNEY(S):
Gil, Francis Rene [COR LD NTC]
1041 Ives Dairy Road Suite 238
Miami. FL, USA 33179-2539
Fax: Email:
DEFENDANT ATTORNEY(S):
Kroblin, Christopher Allen [COR LD NTC]
Erika A Kellerhals, PC
PO Box 608
St Thomas. VI, USA
<i>pro Hac Vice< I> Email:
Yellin, Jonathan Andrew [COR LD NTC]
Jonathan A Yellin, PA
1401 East Broward Boulevard Suite 204
Ft Lauderdale. FL, SA 33301
Fax: Email:
THE COURT UPDATED THIS RECORD ON: 03/08/2011 12:00:00 AM
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