THE CIRCUIT COURT OF- THE JUDICIAL, IN AND BEACH. COUNTY, FLORIDA CASE NO.: {Emang RE: ?The Former Marriage of. Petit'io?erf'For'ime'r Wife, and ANDREW - Respondenthormer Husbandi TRANSCRIPT OF THE PRGCEEDINGS HAD BEFORE MAR-TIN COLIN: DATE: Saptember 16} 2015 TIME: 4.9.102? 9:32 PLACE SOUTH COURTHOUSE QUQiWeStEAtlantiC Avenue Deiray: Beach,- Florida 33444 (561)? 689*0999 APPEARANCES: ON BEHALF OF THE WIEE: SACHS SAX CAPLAN 6111 Broken Sound Parkway NW, Suite 200 Boca Raton, Florida 33487 By: JAY A. SCHWARTZ, ESQUIRE ON BEHALF OF THE HUSBAND: LAW OFFICE OF BENJAMIN T. HODAS LLC 515 North Flagler Drive, Suite 700 West Palm Beach, Florida 33401 By: BENJAMIN T. HODAS, ESQUIRE ON BEHALF OF CHARNA LARKIN: GOLDMAN FELCOSKI STONE, P.A. 745 12th Avenue South, Suite 101 Naples, Florida 34102 By: JON SCUDERI, ESQUIRE 8c DEBORAH GOODALL, ESQUIRE Page: 2 Florida Court Reporting (561) 689?0999 Page:3 I 2 3 THE COURT: Good morning. What case? 4 MR. SCHWARTZ: Larkin. 5 MR. HODAS: Good morning, Your Honor. 6 THE COURT: All right. All right. '7 2013DR9921. 8 Counsel, make your appearances. 9 MR. SCHWARTZ: Jay Schwartz for the former 10 wife, Amber Bloom Larkin. 11 MR. HODAS: Good morning, Your Honor. 12 Ben Hodas on behalf of the former husband, 13 Andrew J. Larkin. And there is also a motion 14 pending related to a trustee of one of the 15 trusts that's at issue today. His name is 16 John Larkin. I?m representing his interest as 17 well. May it please the Court. 18 MR. SCHWARTZ: Good morning, Your Honor. 19 I'm Deborah Goodall from Goldman, Felcoski 20 Stone, and we represent Charna Larkin, the 21 mother. 22 THE COURT: Okay. All right. So it looks 23 like it's the former husband's objections. 24 You're up. Go ahead. 25 MR. HODAS: It is. May it please the Florida Court Reporting (561) 689?0999 PageCourt. Your Honor, let me give you, what is pending before Your Honor. And just very briefly by background, you divorced these parties back in December of 2014. THE COURT: Uh?huh. MR. HODAS: And there is a provision that requires my client to secure a life insurance policy in the amount of $1 million, with the former wife to be the owner. This was pursuant to a prenuptial agreement actually, a postnuptial agreement that they entered into shortly after they got married. We have a hearing coming up, I believe, next week on this issue. Now, the issue is, is that my client has not been able to obtain a life insurance policy because of his health conditions. He has had some heart ablations, and he's also been in alcohol rehab, I think, five or six times over the last four or five years, some of which occurred during the parties' marriage. The request that is being made and I'll tell you too. The life insurance is not associated with any support obligations that the former Florida Court Reporting (561) 689?0999 Page: 5 (John Scuderi, Esquire, enters the courtroom.) THE COURT: Someone else is here. MR. SCUDERI: Sorry, Your Honor. Jon Souderi. I work with Debbie. It took me almost 3 1/2 hours from Naples. I'm sorry, Your Honor. MS. GOODALL: I was the sloppy second fill?in. THE COURT: You're representing the former husband's mother? MR. SCUDERI: Correct. THE COURT: Okay. Got it. MR. HODAS: I'm sorry. May it please the Court. There are no support provisions in the final judgment, so at least our position is that the life insurance provision is not incident to support, but it's an equitable distribution item. The issue that we have and do you have the request to produce? I guess it's not THE COURT: I have objections to the former wife's renotice of the depositions. MR. HODAS: Okay. Let me show you -- MR. SCHWARTZ: I got it, Ben. Florida Court Reporting (561) 689-0999 PageTHE COURT: Motion for protective order by Charna. MR. HODAS: Okay. So what I'm going to hand Your Honor is the deposition excuse me the former wife's renotice of taking deposition duces tecum, directed at Charna Larkin, the mother of my client. And the relevant provisions to which I have objected and to which other objections are pending are on the attached Schedule A. THE COURT: So you don't object to the deposition; you object to the duces tecum to the deposition? MR. HODAS: That's correct, Your Honor. THE COURT: All right. Go ahead. MR. HODAS: All right. To the extent that okay. 80, No. 2: "True copies of each and every trust disbursement made by you, Jonathan Larkin, and/or David Larkin to Andrew Larkin from any trust in the past three years." I have two objections to this: One is the time frame because we had the final judgment of dissolution of marriage that was entered in December of 2014. And this is seeking time significantly previous to that. Florida Court Reporting (561) 689?0999 Page24.- 25 And, number two, I don?t believe that there?s anything pled in the former wife's motion for contempt that makes the trust distributions relevant. THE COURT: Did you skip over 1 deliberately? You're agreeing to produce No. 1? MR. HODAS: Yes. THE COURT: All right. Go ahead. MR. HODAS: And so that's our position on No. or excuse me No. 2. And I'll tell you that based on as it?s framed in the former wife's motion for contempt, to the extent she's seeking fees, we have provided all of the trust distributions from January 2015 to present. I think it actually went through the end of October. So not present as in today, but through August. I'm sorry. Then with respect to No. 3 and this goes to my representation of John Larkin, there is to my knowledge and based on the pleading, there is no issue with reSpect to Jonathan Larkin that?s pending at all. And so my position is that any trust in the name of Florida Court Reporting (561) 689-0999 PageJonathan Larkin is irrelevant. And then I had also provided, on behalf of my client, a general objection to the David Larkin Trust, even though I do not represent him in this matter. May it please the Court. THE COURT: Okay. Mr. Schwartz? MR. SCHWARTZ: Yes, Your Honor. The final judgment requires Mr. Larkin to either obtain the million dollar life insurance naming the wife as beneficiary and owner, or let me quote the words. THE COURT: What page are you referring to so I can follow along? MR. SCHWARTZ: In my motion. Do you have my motion? THE COURT: In the final judgment? MR. SCHWARTZ: The operating provision, in Paragraph 8. No, no, no, no. MR. HODAS: It's on page 16 of 28 at Paragraph 15. THE COURT: Of the poetnuptial agreement? MR. HODAS: Yes, Your Honor. THE COURT: Do you agree, Mr. Schwartz, that's where it is? Florida Court Reporting (561) 689-0999 PageMR. SCHWARTZ: Yes. THE COURT: Okay. Let me find it. MR. SCHWARTZ: What page did you say it was, Ben? MR. HODAS: It's page 16 of 28 of the postnuptial agreement at Paragraph 15. MR. SCHWARTZ: That's what the final judgment says he should comply with, Paragraph 15. THE COURT: Okay. I read the paragraph. MR. SCHWARTZ: Okay. So he is either to obtain or transfer a portion of his current life insurance policy from his trust. He has two $1 million policies from his trust. His defense to this action is, A, I'm uninsurable. THE COURT: Where does it say he has to obtain it from his trust? MR. SCHWARTZ: I shall forthwith either obtain or transfer a portion of his current life insurance policies. Those are held in the trust, in the Andrew J. Larkin Life Insurance Trust. THE COURT: Is that stipulated that that's s~ that at the time of postnup where Florida Court Reporting (561) 689-0999 says that he?s going to transfer. You can only transfer something that you have. So there was a life insurance policy owned by one of his trusts, with him as the inSured? MR. HODAS: That's correct. And just for clarification, the policy owns the trust. Mr. Larkin does not own the trust. I?m sorry. MR. SCHWARTZ: The trust owns the policy. MR. HODAS: The trust owns the policy. Mr. Larkin does not own the policy. THE COURT: Okay. But he's the insured. And who's the beneficiary? MR. HODAS: Currently, it's MR. SCHWARTZ: Mr. Larkin. MR. HODAS: It's any descendants of Mr. Larkin. The trust is rather complicated, and it was his wife during the term of his marriage. And once he got divorced, I believe it reverts to some other beneficiaries, not his now ex-wife. THE COURT: Okay. So meaning Mr. Larkin and/or a trust that he has an interest in had at the time of the postnup, a life insurance policy of $1 million? Florida Court Reporting (561) 689?0999 PageMR. SCHWARTZ: Two of them. MR. HODAS: Two of them. Correct. THE COURT: Are those still in existence? MR. HODAS: They are. THE COURT: So this agreement says he's going to transfer a portion of his current life insurance policy. When this agreement was made and it was made, then, part of a court order, were the policies of life insurance to which the agreement referred to these two policies that are held by the trust? MR. HODAS: Correct. MR. SCHWARTZ: They were effective. He did not do it. THE COURT: So tell me. What?s the problem. MR. HODAS: The issue is that the policy, because it?s not owned by Mr. Larkin, it's well, the trustees have control over it. We have asked the trustees to make the transfer, and they've said, we're not transferring it. So in the alternative, the other provision of this Paragraph 15 says he has to obtain a life insurance policy. And you will hear Florida Court Reporting (561) 689-0999 Pageevidence next week that he THE COURT: So if I put Mr. Larkin in jail and I keep him there up to the rest of his life, the trustees won't transfer it over at his request? MR. HODAS: Well, I don't know what they'll do. THE COURT: Well, that's what we'll see. That?s what will happen. Okay. Good. All right. When's the hearing? MR. SCHWARTZ: Next week. THE COURT: Okay. I mean, the trustees have some duty to him. True? MR. HODAS: They do. THE COURT: Okay. So we'll see if they like to do what Mr. Larkin wanted them to do in this agreement and see if they'll serve as trustees when he's incarcerated for failing to perform an act. MR. HODAS: But he doesn't THE COURT: No. I disagree with you. You say equitable distribution. I didn't agree with you when you said it. I can hold him in contempt for failing to Florida Court Reporting (561) 689-0999 Pageperform an act. Okay? So if I find that he failed to perform an act of causing the trustees to transfer this over, I?ll put him in jail, and then we'll see what the trustees do. That's the simplest solution. I mean, I get this stuff all the time. MR. HODAS: Right. But my understanding of the irrevocable life insurance trust is that he has no ability to tell the trustees what to do. THE COURT: We'll see. When he phone calls them from the jail and says, I'm.in jail, and I'm going to stay here up to the rest of my life. Will you do that? We'll see if they do it or not. Maybe after a year of being in jail, they won't, or they will. And we?ll know the solution to that. That's easy. I do this all the time. He agreed to do this. I mean, this was his deal. He had it. I mean, it wasn?t a hidden situation that it was owned by this trust . So the way I avoid game playing is between the trustees and him is we put him in jail. We let him sit there. He?s going to make some phone calls pretty soon. And as soon Florida Court Reporting (561) 689?0999 does that, you'll see that the trustees the light will go off with the trustees and they'll transfer it over. I haven't had a case yet where that hasn?t happened. MR. HODAS: Okay. THE COURT: Usually the person sits in jail for up to about a minute. They usually call when they're on their way over to the jail. Okay. Because you can be held in contempt for failing to perform an act. I?m not prejudging because maybe he doesn't own it. I don't know what the policy looks like. But if what you're telling me is so, he can cause them to do it, and they have to then they have some duties to him. MR. HODAS: Okay. My understanding of the trust, based on my reading of it THE COURT: They have no duty at all to him is what you?re saying. They don't owe any responsibility to help him comply with court orders. I doubt that that's the case. MR. HODAS: That's my reading of the trust, Your Honor. Although, that's why I have THE COURT: Does anyone know a different Florida Court Reporting (561)689-0999 Pagereading of it? MR. HODAS: Because he doesn't own it and it's an irrevocable trust, the trust THE COURT: Why would he have pledged, as part of the agreement, that he had the ability to do this? MR. HODAS: Because he thought that he would get their cooperation, and that's why he has the THE COURT: trustees? MR. SCHWARTZ: His brothers. MR. HODAS: Two of his brothers. THE COURT: Okay. easier. It?s one thing if it was some strange corporate trustee. So you're going to try to convince me that his brothers are going to let him sit in jail up to the rest of his life? Maybe they will. Why do I doubt that? MR. HODAS: today at 12:30. THE COURT: that out then, but, you know, that's what he's exposed to. MR. HODAS: But, Your Honor, there was w~ Florida Court Reporting (561) 689-0999 Who are the people who are the So that even makes this We have one of the depositions Well, you know, you can figure THE COURT: Let's try not -- I mean, I don't understand one thing. Why are we playing this game of doing this if you have an existing policy? He doesn?t have to then go buy a new one. You don't have to have financial discovery of his ability to do this. It will save fees and costs. I mean, isn't the most practical thing here for everyone just because it is an existing policy to just make her one of them, the owner and beneficiary of it? Then you don't have to worry about the state of his health. MR. HODAS: I agree. And that's why I have attempted to, and apparently they have a strong dislike for the ex?wife. THE COURT: We'll see if they have a strong dislike for their brother. Okay. All right. MR. SCHWARTZ: The reason that I subpoenaed the mother because she's the trustee of one of the other trusts. THE COURT: One of the trusts that have the life insurance? MR. SCHWARTZ: The life insurance? No. One of the trusts that is continuously giving Florida Court Reporting (561)689?0999 PageMr. Larkin money. For example, $1 million to buy the house while he was married to my client. $50,000 to get him out of jail. THE COURT: What's the relevancy of that? MR. SCHWARTZ: The relevancy would be the case of Sibley. You ask and you can get. And if he's claiming he has no ability to ask to get THE COURT: Well, but she doesn't have the mother's trust, you just told me, is not connected to the life insurance policy. MR. SCHWARTZ: Correct. But I believe there's case law. I'm representing to the Court that you can, A, order what you just ordered, which we're hoping you're going to do; or, B, if he says, well, they won't give it to me, then maybe THE COURT: Who's "they?" MR. SCHWARTZ: My brothers won't transfer the policy -- THE COURT: Okay. MR. SCHWARTZ: and I'm uninsurable. Maybe the Court is going to say, well, in that case, if you have the financial ability to ask your mom and the other trust for $1 million for I didn't bring it today, but Florida Court Reporting (561) 689?0999 Pagehouse and $50,000 for attorneys' fees, you will have the ability to get the money from the trust and self-insure yourself and post $1 million. THE COURT: zero. MR. SCHWARTZ: Okay. THE COURT: I'm not rewriting their agreement. insurance policy. I'm not allowed to rewrite the agreement Does that help on that issue? MR. SCHWARTZ: Your Honor. THE COURT: Okay. I can't do that. know what Sibley is about. MR. SCHWARTZ: Okay. THE COURT: The chance of me doing that is I'm not the agreement says life It doesn't say cash bond. It helps on both issues, I That's different. Sibley is a child support case where the parents were supporting him and then all of a sudden said we don?t have money to pay child support. And they said, well, we' MR. SCHWARTZ: Right. Because the kept on giving him money. THE COURT: But that?s different. life insurance issue. 11 see. father This a Florida Court Reporting (561) 689-0999 PagetlQ 3225 MR. SCHWARTZ: That will substantially help cut the issues down. If you're telling me today that there is not going to be any THE COURT: You can't rewrite the agreement to require that he put a pool of $1 million in some account and then upon his death that $1 million of his money, once distributed to him, be used to satisfy this. Not a chance. MR. SCHWARTZ: Okay. So then the other relevance, if I may, Your Honor THE COURT: Okay. MR. SCHWARTZ: -- is if he can simply go to the mother and say, I need this, I need that, just by asking, and she gives him. And he can go to the brothers, and he has gotten from the brothers, or the brothers have gotten from the mother because they?re all trustees and beneficiaries of each other. Then it would go towards the it's probative as to whether or not they are playing games. And he could simply say to the brother, give me the policy, and they're intentionally not giving him the policy, yet they were giving him everything else. THE COURT: Right now I'm not dealing the Florida Court Reporting (561) 689-0999 Pagemother's deposition. I don?t see how the mother can help you in discovery of the issue. I mean, she?s not connected to this agreement. The life insurance doesn't that was in existence. It's not life insurance in a trust she?s connected to, you just told me. MR. SCHWARTZ: Right. THE COURT: He can't the former husband cannot obtain a life insurance policy from his mother. She's not a life insurance company. MR. SCHWARTZ: Correct. THE COURT: So I'm not sure what taking her deposition would accomplish for this issue. MR. SCHWARTZ: To be perfectly frank with the Court, as I always am, I am trying to establish that all he has to do from his family is ask. THE COURT: But if his brothers are the trustees of the trust in question, his mom might say yes, but what good does that do? Yes, I'll be more than glad to transfer whatever life insurance policy is here, but there are none. So how does that help? MR. SCHWARTZ: Just towards the issue of his ability to ask and get. Florida Court Reporting (561) 68941999 PageTHE COURT: Motion for protective order on the mother granted. MR. SCHWARTZ: So no deposition? THE COURT: No deposition at all. MR. SCHWARTZ Okay. THE COURT: There's nothing probative about you know, what she might do is not helpful. Okay. And I'm sure, Mr. Hodas, you'll tell them how we do these things. It's almost silly to have to deal with this because his brothers don't like the ex-wife, but they have a fiduciary duty to their brother, Andrew. And, you know, maybe, as has happened sometimes, it's a question of, like, you know, where the struggle takes place. So they may think they?re more powerful than Amber, but they're not more powerful than me. All right. Does that dispose of all the pretrial stuff? MR. SCHWARTZ: Yes. MR. HODAS: It does. I just want to make clear that you understand where I?m coming from. That what I've received, based on the evidence that I have, is that the brothers are Florida Court Reporting (561) 689-0999 being obstreperous. THE COURT: All right. Well, maybe then you need to have a removal action and remove them as trustees. That could also happen. MR. HODAS: I just don't want the Court THE COURT: I'm saying that you, Ben Hodas, haven't done it. I don?t know what Mr. Larkin has done with his brothers. But, you know, we'll cross that bridge if we have to, but hopefully we won't. MR. SCHWARTZ: Thank you, Judge. MR. HODAS Okay. THE COURT: There are some other objections. Are they moot now? MR. HODAS: They're all interrelated, Your Honor. They all emanated from Charna Larkin?s deposition. THE COURT: Well, there?s something about a financial affidavit. Is that an issue? That was MR. HODAS: Oh, that's right. mine, Your Honor, today. That was they had asked for the financial affidavit from my client. And I objected because I said my understanding is the only thing that they could ask for is for attorneys? fees, and I Florida Court Reporting (561)689?0999 Pagestipulated that he has the ability to pay attorneys? fees. THE COURT: Well, they also can say since the agreement says he has to obtain a policy. I don?t know that I hear you Say for him not evidence, that he can't qualify. But is there a stipulation that he could afford the $1 million policy at whatever premium cost it is if he was eligible to receive one? MR. HODAS: We sought out two companies to attempt to obtain. And I offered to Mr. we were declined outright. Doesn't make a difference what he's paying for it. And I offered to have Mr- Larkin sit for an exam- MR. SCHWARTZ: Judge, this is offers of settlement. THE COURT: But he would have to normally furnish_a financial affidavit to cross this one issue, unless you're not raising this issue, whether he has the financial ability to pay for a policy. Not an existing one, but a new policy, if he was eligible. Does he? MR. SCHWARTZ: No matter what the cost? THE COURT: I don't know what the premium is, but they have a right to get an affidavit Florida Court Reporting (561) 689?0999 Pagefrom him to see if he has the financial ability to pay for such a policy. MR. HODAS: I guess in my mind, Your Honor, since We were unable to get any policy that's available to him and I offered him up to Mr. Schwartz and he said we're not going to do that, I can represent that there's no evidence from our side that there's even a policy available. THE COURT: But you have to produce a financial affidavit then, unless you want to stipulate that he can afford to pay for another policy that he might be eligible for. MR. HODAS: If Mr. Schwartz says he's got evidence that's he's going to produce at the hearing that there is a policy out there THE COURT: Discovery goes to multiple issues. This is a discoverable issue. MR. HODAS: Sure. But the representation from Mr. Schwartz is that he was not going to bring any evidence to you THE COURT: Is it a nonissue for the hearing as to whether he can obtain a policy? MR. SCHWARTZ: It is an issue because THE COURT: Stop. He just said it is an Florida Court Reporting (561) 689-0999 Pageissue. MR. SCHWARTZ: It is an issue. THE COURT: As to whether he can obtain a policy. You said it is an issue. You said it wasn't. So are you guys on the Same wavelength? MR. HODAS: No. Because he's saying he didn't try hard enough. What I asked Mr. Schwartz was do you have evidence out there that there is a policy that is available to him. THE COURT: The burden of proof is on the husband at starting point. So it's not up to Mr. Schwartz to do it. Itand satisfy me that he can't do it. But I'm not going to have two hearings. If I find that he can do it, then I'm not going to have another one and then he says, but, Judge, I can't afford to pay the premium. I'm not, you know, dealing with all of this at the same hearing. MR. HODAS: No, I understand that. And just in our pretrial discussions, Your Honor, I had asked if there was going to be any evidence presented on whether or not Florida Court Reporting (561)689?0999 PageTHE COURT: Well, I don't know what evidence they're going to have, but you have to go forward first. MR. HODAS: Correct. But I don't have any evidence that he can even obtain a life insurance policy. THE COURT: Well, you have to have evidence that he can't. MR. HODAS: I do. I have evidence that he cannot produce. THE COURT: Then you'll present that evidence. But if I don't agree with that evidence, then the issue will be could be the affordability of such a policy in view of his health. Someone might say, yeah, we'll give you the $1 million policy, but you have to pay the $900,000 for it in cash. He may say, I don't have $900,000. Then I would excuse him. So you have to either produce a financial affidavit or agree that if he does get eligibility for a policy, that he can afford to pay the premium or that the ability to pay is not an issue. MR. HODAS: No. He doesn't have $1 million or 900,000. Florida Court Reportng (561) 689-0999 PageTHE COURT: affidavit then. So you're going to produce an MR. HODAS: If that's what the Court orders. THE COURT: You have to complete the snapshot of what I may have to try. MR. HODAS: Okay. THE COURT: charge, but they may charge something. I have no idea what they may Of course, under the law let me just say this. Everybody is eligible for a policy. a question of how much you pay. tell you right now: It's just 80 I could If he gave the life insurance company a check for $1 million today, they'll insure him for $1 million. I know that for a fact because they're going to make money even if he died the next day. would find that to be an unreasonable interpretation of the agreement. But I probably So everyone has got to kind of step away and put their reasonableness cap on. Obviously, I look at these clauses in terms of reasonableness. I'm not going to have pay $1 million for a $1 million policy. Otherwise, then make them self?insure, some one which is Florida Court Reporting (561)689-0999 Pagerequired. But maybe they'll say, his health condition, we'll give it to him for 100,000. I don't know whether that's affordable or not so that?s why you have to produce an affidavit. So that objection is overruled. The rest are sustained. MR. SCHWARTZ: Today is Wednesday. Can we get it Friday? MR. HODAS: I'm out of town tomorrow and Friday. MR. SCHWARTZ: Can Michelle do it? THE COURT: You represent Charna. Do you have an order for me to sign? MR. SCUDERI: I didn't bring one, Your Honor, but I shall prepare one and get it to you. MR. SCHWARTZ: What day is Monday? THE COURT: Monday is the 21st. MR. SCHWARTZ: Ben, I'm sorry. I'm going to print because I know you hate my writing. MR. HODAS: No problem. MR. SCHWARTZ: When is it the 21st, Your Honor? MR. HODAS: I'll try to get it to you I'll try to have it ready by the weekend. Florida Court Reporting (561) 689-0999 MR. SCHWARTZ: be away. Thank you, Page: 29 No problem. Whenever you can. Your Honor. I'm going to (Thereupon, the proceedings concluded at 9:32 Florida Court Reporting (561) 689-0999 I I A STATE OF FLORIDA COUNTY OF PALM BEACH Page: 30 5 I, GINA R. GRANT, do hereby certify that I 6 was authorized to and did stenographically report the 7 foregoing proceedings and that the transcript is a true 8 and correct transcription of my stenotype notes of the 9 proceedings. 10 DATED this 16th day Of September, 2015GINA R. GRANT Notary Public State of Florida 17 My Commission No. FF204428 18 Expires: May 19, 2019 Florida Court Raporting (561) 689?0999