EFTA01407189

NAME SEARCHED: Erika Kellerhals PWM BIS-RESEARCH performed due diligence research in accordance with the standards set by AML Compliance for your business We completed thorough searches on your subject name(s) in the required databases and have attached the search results under the correct heading below. Significant negative media results may require escalation to senior business, Legal and Compliance management. Also, all accounts involving PEPs must be escalated. Search: Result: RDC PCR Yes BIS No Hit Hit No Hit Hit Not Required Not Required No Not Required D&B Smartlinx Court Cases Results? Yes Not Required Results? be Required Yes Not Required Review by Legal May No Results Search not required Prepared by: Prachi Pawa Date: 10/12/2016 Research Analyst Instructions: 1. Review and confirm that all results are returned for your client. 2. Please note that you are still required to perform any Martindale-Hubbell search (if applicable) on each search subject. We have attached the web link below for your convenience:Martindale-Hubbellhttp://www.martindale.com/xp/- Martindale/home.xml 3. As needed, provide comment for any negative results. 4. If applicable, please obtain clearance from Compliance for all alerts. 5. Save any changes you make to this document and attach file to your KYC. Please note: Submission of a signed KYC is your confirmation that you have fully reviewed the research documents. No VII. Smartlinx VIII. Court Cases EFTA01407189 No Click here for results: I. RDC Results II. PCR Results III. Negative Media IV. Non-Negative Media Reviewer Comments (as necessary): No RDC alert (Please see attached) No PCR alert (Please see attached) There was no information found There was no information found V. Other Language Media Not Required VI. D&B Not Required Result Found(please see attached) Result Found(please see attached) For internal use only EFTA01407190 OFAC RESULTS RDC: 11593661 No Match Found GCIS 00000483290 Erika Kellerhals Country:United States Date of Birth: 10/13/1974 PCR: C20161034949193 Erika Kellerhals 12013248 NCA customised Auto-Closed No-Hit 12/10/2016 BIS RESULTS Negative Media: There was no information found Non-Negative Media: There was no information found Other Language Media: Not Required Public Records: 1 OF 1 RECORD(S) FOR INFORMATIONAL PURPOSES ONLY Copyright 2016 LexisNexis a division of Reed Elsevier Inc. All Rights Reserved. Date: 10/12/2016 Report processed by: DEUTSCHE BANK AGI I For internal use only EFTA01407191 Page 2 Full Name KELLERHALS, ERIKA A Address 242 BRYANT AVE STATEN ISLAND, NY 10306-3142 RICHMOND COUNTY ADDITIONAL PERSONAL INFORMATION SSN DOB 074-72-XXXX Subject Summary 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 1: 074-72-XXXX State Iss. New York Possible E-Mail Addresses ERIKA@MARJORIEROBERTSPC.COM EKELLAR@VT.EDU Others Using SSN - 2 records found Full Name 1: KELLERHALS, ENER SSN 074-72-XXXX DOB 10/1974 Date Iss. Warnings Most frequent SSN attributed to subject: 1987-1988 10/1974 (Age:41) County RICHMOND Phone (718) 667-1921 Gender LexID(sm) 001368644215 11: YOUNG, MICHAEL S EFTA01407192 074-72-XXXX Address Summary - 12 records found No. Address 1: 242 BRYANT AVE STATEN ISLAND, NY 10306-3142 RICHMOND COUNTY 2: 3: 4: 9053 ESTATE THOMAS 101 ST THOMAS, VI 00802 ST. THOMAS COUNTY 9100 PORT OF SALE MALL STE 15 ST THOMAS, VI 00802-3602 ST. THOMAS COUNTY 9053 ESTATE THOMAS STE 10 ST THOMAS, VI 00802 For internal use only EFTA01407193 Page 3 No. Address ST. THOMAS COUNTY 5: PO BOX 608 ST THOMAS, VI 00804-0608 ST. THOMAS COUNTY 6: PO BOX 6347 ST THOMAS, VI 00804-6347 ST. THOMAS COUNTY 7: 8: 9: 9100 PORT OF SALE MALL STE 2 ST THOMAS, VI 00802-3602 ST. THOMAS COUNTY 184 JORALEMON ST APT 1 BROOKLYN, NY 11201-4329 KINGS COUNTY 184 JORALEMON ST APT 12R BROOKLYN, NY 11201-4329 KINGS COUNTY 10: 187 JORALEMON ST APT 12R BROOKLYN, NY 11201-4306 KINGS COUNTY 11: 242 BRYSON AVE STATEN ISLAND, NY 10314-1923 RICHMOND COUNTY 12: 242 BYRNE AVE STATEN ISLAND, NY 10314-4409 RICHMOND COUNTY Address Details 1: 242 BRYANT AVE STATEN ISLAND, NY 10306-3142 Address 242 BRYANT AVE STATEN ISLAND, NY 10306-3142 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 ESTATE THOMAS 101 ST THOMAS, VI 00802 Address EFTA01407194 9053 ESTATE THOMAS 101 ST THOMAS, VI 00802 For internal use only Dates 6/2016 - 8/2016 Phone Dates Phone 2/1994 - 10/2016 (718) 667-1921 EFTA01407195 Page 4 ST. THOMAS COUNTY Household Members None Listed Other Associates None Listed 3: 9100 PORT OF SALE MALL STE 15 ST THOMAS, VI 00802-3602 Address 9100 PORT OF SALE MALL STE 15 ST THOMAS, VI 00802-3602 ST. THOMAS COUNTY Household Members None Listed Other Associates BETZ, SHAUNA L 4: 9053 ESTATE THOMAS STE 10 ST THOMAS, VI 00802 Address 9053 ESTATE THOMAS STE 10 ST THOMAS, VI 00802 ST. THOMAS COUNTY Household Members None Listed Other Associates None Listed 5: PO BOX 608 ST THOMAS, VI 00804-0608 Address PO BOX 608 ST THOMAS, VI 00804-0608 ST. THOMAS COUNTY Household Members KELLERHALS, EDWARD A Other Associates FERGUSON, GREG 3 6: PO BOX 6347 ST THOMAS, VI 00804-6347 Address PO BOX 6347 ST THOMAS, VI 00804-6347 ST. THOMAS COUNTY Household Members KELLERHALS, EDWARD A Other Associates FERGUSON, GREG 3 7: 9100 PORT OF SALE MALL STE 2 ST THOMAS, VI 00802-3602 Address 9100 PORT OF SALE MALL STE 2 ST THOMAS, VI 00802-3602 ST. THOMAS COUNTY Household Members KELLERHALS, EDWARD A Other Associates None Listed EFTA01407196 8: 184 JORALEMON ST APT 1 BROOKLYN, NY 11201-4329 Address For internal use only Dates Phone Dates 7/2003 - 6/2004 Phone Dates 3/2004 - 4/2009 Phone Dates 3/2004 - 11/2015 Phone Dates 5/2016 - 5/2016 Phone Dates 12/2003 - 6/2016 Phone EFTA01407197 Page 5 184 JORALEMON ST APT 1 BROOKLYN, NY 11201-4329 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 9: 184 JORALEMON ST APT 12R BROOKLYN, NY 11201-4329 Address 184 JORALEMON ST APT 12R BROOKLYN, NY 11201-4329 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 10: 187 JORALEMON ST APT 12R BROOKLYN, NY 11201-4306 Address 187 JORALEMON ST APT 12R BROOKLYN, NY 11201-4306 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 11: 242 BRYSON AVE STATEN ISLAND, NY 10314-1923 Address 242 BRYSON AVE STATEN ISLAND, NY 10314-1923 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 EFTA01407198 Household Members None Listed Other Associates None Listed 12: 242 BYRNE AVE STATEN ISLAND, NY 10314-4409 Address For internal use only Dates Phone Dates 2/1994 - 2/1994 Phone Dates 2/1994 - 10/1997 Phone Dates 10/1997 - 11/1997 Phone 11/1997 - 11/1997 EFTA01407199 Page 6 242 BYRNE AVE STATEN ISLAND, NY 10314-4409 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: 242 BRYANT AVE STATEN ISLAND, NY 10306-3142 RICHMOND COUNTY SSN: 074-72-XXXX Date of Birth: 10/1974 Gender: Female Voter Information Last Vote Date: 2002 Party Affiliation: DEMOCRAT Active Status: ACTIVE Driver Licenses - 0 records found Professional Licenses - 1 records found 1: Professional License Licensee Information Name: KELLERHALS, ERIKA ANN SSN: 074-72-XXXX Address: 9100 PORT OF SALE MALL STE 15 ST THOMAS, VI 00802-3602 County: ST. THOMAS Phone: (340) 779-2564 Gender: FEMALE License Information License Type: 105284 Issue Date: 02/10/2015 Status: OTHERS 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 - 2 records found 1: NY MVR Registrant Information Registrant: KELLERHALS, ERIKA A DOB: 10/1974 EFTA01407200 Address: 242 BRYANT AVE STATEN ISLAND, NY 10306-3142 RICHMOND COUNTY For internal use only 2/1994 - 2/1994 EFTA01407201 Page 7 Registration Information Original Registration Date: 1/30/2002 Registration Date: 1/30/2002 Registration Expiration Date: 1/29/2004 Vehicle Information VIN: WVWPD63B42P171962 Class: PASSENGER CAR/LIGHT TRUCK Model Year: 2002 Make: Volkswagen Model: Passat Series: GLS Body Style: Sedan 4 Door Weight: 3196 Plate Information License Plate Type: Private License Plate Number: AHG1059 Plate State: NY Source Information Data Source: GOVERNMENTAL 2: NY MVR Vehicle Information VIN: WVWPD63B42P171962 Class: PASSENGER CAR/LIGHT TRUCK Model Year: 2002 Make: Volkswagen Model: Passat Series: GLS Body Style: Sedan 4 Door Weight: 3196 Owner Information Name: KELLERHALS, ERIKA A DOB: 10/1974 Address: 242 BRYANT AVE STATEN ISLAND, NY 10306-3142 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 EFTA01407202 Fictitious Businesses - 0 records found Notice Of Defaults - 0 records found Potential Relatives - 10 records found 1st Degree: 6, 2nd Degree: 4 No. 1. Full Name KELLERHALS, ENER Address/Phone 184 JORALEMON ST For internal use only EFTA01407203 Page 8 No. Full Name SSN:074-72-XXXX DOB:10/1974 (Age: 41) 2. KELLERHALS, EDWARD A • AKA RELLERMALS, EDWARD A • AKA KELLERNALS, EDW SSN:063-36-XXXX DOB:7/1944 (Age: 72) Address/Phone BROOKLYN, NY 11201-4329 242 BRYANT AVE STATEN ISLAND, NY 10306-3142 (718) 667-1921 242 BRYANT AVE STATEN ISLAND, NY 10306-3142 (718) 667-1921 102 LINCOLN AVE STATEN ISLAND, NY 10306-2459 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 • AKA KELLERHAL, KATHLEEN M • AKA KELLERHALS, KATHLEEN • AKA KELLERHALS, K M • AKA KELLERHALS, KATHEEN • AKA KELLERBALS, KATHLEEN M • AKA KELLERHALS, KATHLEEN M SSN:063-36-XXXX DOB:6/1949 (Age: 67) 4. KELLERHALS, EDWARD 242 BRYANT AVE STATEN ISLAND, NY 10306-3142 (718) 667-1921 256 BRYANT AVE STATEN ISLAND, NY 10306-3142 (718) 351-1242 184 JORALEMON ST STE 12R BROOKLYN, NY 11201-4329 187 JORALEMON ST APT 12R EFTA01407204 BROOKLYN, NY 11201-4306 242 BRYANT AVE STATEN ISLAND, NY 10306-3142 (718) 667-1921 (718) 979-7823 5. DAHLING, ROBERT J SSN:133-60-XXXX DOB:4/1971 (Age: 45) 196 RICE AVE STATEN ISLAND, NY 10314-3032 (718) 273-7338 413 HEBERTON AVE STATEN ISLAND, NY 10302-2125 PO BOX 61494 STATEN ISLAND, NY 10306-7494 46 BACHE AVE STATEN ISLAND, NY 10306-3010 (718) 351-1586 76 PRINCETON AVE STATEN ISLAND, NY 10306-2816 (718) 987-7331 (718) 987-7685 For internal use only EFTA01407205 Page 9 No. 5.A. Full Name DAHLING, ROBERT J SSN:080-34-XXXX DOB:11/1940 (Age: 75) Address/Phone 196 RICE AVE STATEN ISLAND, NY 10314-3032 (718) 273-7338 (718) 979-0174 46 BACHE AVE STATEN ISLAND, NY 10306-3010 (718) 351-1586 (718) 979-0174 76 PRINCETON AVE STATEN ISLAND, NY 10306-2816 (718) 987-7331 (718) 987-7685 5.B. DAHLING, PATRICIA M • AKA DAHLING, P SSN:106-34-XXXX DOB:3/1943 (Age: 73) 196 RICE AVE STATEN ISLAND, NY 10314-3032 (718) 273-7338 359 DEMOREST AVE STATEN ISLAND, NY 10314-2161 (347) 861-0330 5 BOWEN ST APT STATEN ISLAND, NY 10304-3513 5.C. DAHLING, MICHAEL A • AKA DAHLIG, MICHAEL SSN:133-60-XXXX DOB:6/1974 (Age: 42) 4926 E AMELIA AVE PHOENIX, AZ 85018-5523 15822 W PAPAGO ST GOODYEAR, AZ 85338-3340 1207 E SECRETARIAT DR TEMPE, AZ 85284-1611 5050 W IVANHOE ST CHANDLER, AZ 85226-1964 196 RICE AVE STATEN ISLAND, NY 10314-3032 EFTA01407206 (718) 273-7338 5.D. MAYFIELD, JESSICA E • AKA DAHLING, JESSICA A • AKA MAYFIELD, JESSIE • AKA MAYFIELD, JESSI • AKA MORRIS, JESSICA • AKA BUCCOLA, JESSIE SSN:605-09-XXXX DOB:11/1977 (Age: 38) 3516 E PICCADILLY RD PHOENIX, AZ 85018-5116 4926 E AMELIA AVE PHOENIX, AZ 85018-5523 300 W BEECH ST UNIT 1504 SAN DIEGO, CA 92101-8450 6945 E 2ND ST APT 4 SCOTTSDALE, AZ 85251-5339 (480) 994-7352 (760) 685-6573 2395 CARRIAGE CIR OCEANSIDE, CA 92056-3605 6 DAHLING, MELISSA A 46 BACHE AVE For internal use only EFTA01407207 Page 10 No. Full Name • AKA KELLERHALS, MELISSA A SSN:087-70-XXXX DOB:12/1971 (Age: 44) Address/Phone STATEN ISLAND, NY 10306-3010 (718) 351-1586 46 BEACH AVE STATEN ISLAND, NY 10306-1915 242 BRYANT AVE STATEN ISLAND, NY 10306-3142 (718) 667-1921 76 PRINCETON AVE STATEN ISLAND, NY 10306-2816 (718) 987-7331 (718) 987-7685 Business Associates - 2 records found 1: KELLERHALS FERGUSON FLETCHER KROBLIN PLLC Name: KELLERHALS, ERIKA A Address: 501 E KENNEDY BLVD STE 802 TAMPA, FL 33602-5201 Status: ACTIVE State: FL Corporation Number: M13000002984 Descriptive Status: ACTIVE Title: MEMBER MANAGER Record Type: CURRENT Record Date: 10/28/2013 2: 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: 8/4/2016 Filing Date: 1/6/2014 Person Associates - 7 records found No. Full Name Address 1: BETZ, SHAUNA L 9100 PORT OF SALE MALL STE 15 ST THOMAS, VI 008023602 6501 EFTA01407208 RED HOOK PLZ STE 201 ST THOMAS, VI 008021373 5600 ROYAL DANE MALL STE 51 ST THOMAS, VI 008026410 148 W MAPLE AVE DENVER, CO 80223-1841 For internal use only SSN 522-69-XXXX Phone DOB 12/1981 EFTA01407209 Page 11 No. Full Name Address 1576 S JERSEY ST DENVER, CO 80224-1935 2: FERGUSON, GREG J FERGUSON, GREGORY J 9100 PORT OF SALE MALL STE 15 ST THOMAS, VI 008023602 PO BOX 12259 ST THOMAS, VI 008015259 PO BOX 608 ST THOMAS, VI 008040608 PO BOX 6347 ST THOMAS, VI 008046347 2422 W PECOS AVE MESA, AZ 85202-7821 3: HANRATTY, THOMAS E 256 BRYANT AVE H STATEN ISLAND, NY 10306-3142 242 BRYANT AVE STATEN ISLAND, NY 10306-3142 102 LINCOLN AVE STATEN ISLAND, NY 10306-2459 4: ROBINSON, KELLY M TRAYNOR, KELLY 9100 PORT OF SALE MALL STE 22 ST THOMAS, VI 008023602 9100 PORT OF SALE MALL STE 15 ST THOMAS, VI 008023602 4600 ESTATE CHARLOTTE AMALIE ST THOMAS, VI 008022305 2369 KRONPRINDSENS GADE STE 8 ST THOMAS, VI 008026252 3219 CONTANT STE 211 ST THOMAS, VI 008026111 EFTA01407210 134-56-XXXX 7/1973 123-20-XXXX (718) 667-1921 (718) 987-5316 (718) 987-5316 1/1928 601-42-XXXX (480) 831-6166 4/1976 SSN Phone DOB For internal use only EFTA01407211 Page 12 No. Full Name 5: TRAYNOR, CARA ROBINSON, CARA Address 9100 PORT OF SALE MALL STE 22 ST THOMAS, VI 008023602 9100 PORT OF SALE MALL STE 15 ST THOMAS, VI 008023602 4600 ESTATE CHARLOTTE AMALIE ST THOMAS, VI 008022305 2369 KRONPRINDSENS GADE STE NO8 ST THOMAS, VI 008026252 3219 CONTANT STE 211 ST THOMAS, VI 008026111 6: GEARY, BRETT A A 17724 MINE RD DUMFRIES, VA 220252003 9100 PORT OF SALE MALL STE 15 ST THOMAS, VI 008023602 9100 PORT OF SALE MALL STE 22 ST THOMAS, VI 008023602 PO BOX 305259 ST THOMAS, VI 008035259 15211 STREAMSIDE CT DUMFRIES, VA 220253022 7: THOMAS, WILLIAM AVERY 10204 MAPLERIDGE DR DALLAS, TX 75238-2257 2900 CHAUTAUQUA AVE APT 255 NORMAN, OK 73072-7715 2900 CHAUTAUQUA AVE APT 2 NORMAN, OK 73072-7723 1020 W 4TH AVE APT 13 EFTA01407212 STILLWATER, OK 740743337 For internal use only 451-83-XXXX 10/1984 580-23-XXXX (703) 221-2506 (703) 445-9194 SSN 052-60-XXXX Phone DOB 7/1976 EFTA01407213 Page 13 No. Full Name Address 9100 PORT OF SALE MALL STE 15 ST THOMAS, VI 008023602 Neighbors - 10 records found 242 BRYANT AVE STATEN ISLAND, NY 10306-3142 Name CAHILL, JAMES BRIAN CARDO, ERICA BURKE, MATTHEW J ASSENZA, CHRISTOPHER M ASSENZA, MICHAEL P CIRIGLIANO, MICHAEL EDWARD CIRIGLIANO, SUZANNE MIRO, FRANK AGUSTIN PACCIONE, PAMELA J GLAZAROV, MICHELLE J LEOKUMOVICH, BORIS KRUSE, ADAM M KRUSE, BRANDON G KRUSE, DONNA V KRUSE, JOHN J KRUSE, VICTORIA M CUSACK, C J CUSACK, MARIE E GILLIUM, MAUREEN A MCMILLAN, ROBERT M RAMIN, DENISE A Address 235 BRYANT AVE STATEN ISLAND, NY 10306-3103 235 BRYANT AVE APT 2 STATEN ISLAND, NY 10306-3103 241 BRYANT AVE STATEN ISLAND, NY 10306-3143 (718) 979-2166 Phone (718) 987-5658 SSN Phone DOB 243 BRYANT AVE STATEN ISLAND, NY 10306-3143 (718) 979-6876 245 BRYANT AVE STATEN ISLAND, NY 10306-3143 250 BRYANT AVE STATEN ISLAND, NY 10306-3142 EFTA01407214 (718) 667-1705 (718) 351-8871 251 BRYANT AVE STATEN ISLAND, NY 10306-3143 (718) 351-3510 251 BRYANT AVE APT H STATEN ISLAND, NY 10306-3143 256 BRYANT AVE STATEN ISLAND, NY 10306-3142 257 BRYANT AVE APT STATEN ISLAND, NY 10306-3136 Employment Locator - 14 records found 1: Company Name: THERAPY ASSOCIATION AND DISABILITIES ADVOCATES INC Name: KELLERHALS, ERIKA A Address: PO BOX 6016 ST THOMAS, VI 00804-6016 SSN: 074-72-XXXX Confidence: High 2: Company Name: KELLERHALS FERGUSON FLETCHER KROBLIN PLLC Name: KELLERHALS, ERIKA A For internal use only (718) 351-3510 (718) 351-1242 (347) 286-0615 EFTA01407215 Page 14 Title: MEMBER MANAGER SSN: 074-72-XXXX Confidence: Medium 3: Company Name: THE MAHOGANY RUN HOME OWNER'S ASSOCIATION Name: KELLERHALS, ERIKA A Title: VICE PRESIDENT AND DIRECTOR Address: 6501 RED HOOK PLZ STE 201 ST THOMAS, VI 00802-1373 SSN: 074-72-XXXX Phone: (340) 626-5890 Confidence: Medium 4: Company Name: PATIENT ASSIST VI Name: KELLERHALS, ERIKA A Address: 9100 PORT OF SALE MALL STE 15 ST THOMAS, VI 00802-3602 SSN: 074-72-XXXX Confidence: High 5: Company Name: VISF Name: KELLERHALS, ERIKA A Title: VICE PRESIDENT Address: PO BOX 1605 KINGSHILL, VI 00851-1605 SSN: 074-72-XXXX Phone: (304) 692-3310 Confidence: Medium 6: Company Name: KELLERHALS P.0 Name: KELLERHALS, ERIKA A Title: PARTNER Address: PO BOX 608 ST THOMAS, VI 00804-0608 SSN: 074-72-XXXX Phone: (340) 779-2564 Confidence: Medium 7: Company Name: THERAPY ASSOCIATION AND DISABILITIES ADVOCATES INC Name: KELLERHALS, ERIKA A Address: PO BOX 608 ST THOMAS, VI 00804-0608 SSN: 074-72-XXXX Confidence: High 8: Company Name: ERIKA A. KELLERHALS P.0 Name: KELLERHALS, ERIKA A Address: PO BOX 608 ST THOMAS, VI 00804-0608 SSN: 074-72-XXXX EFTA01407216 Phone: (340) 779-2564 Confidence: Medium 9: Company Name: ERIKA A. KELLERHALS P.0 Name: KELLERHALS, ERIKA For internal use only EFTA01407217 Page 15 Title: PRESIDENT Address: PO BOX 608 ST THOMAS, VI 00804-0608 SSN: 074-72-XXXX Phone: (340) 779-2564 Confidence: Medium 10: Company Name: MARJORIE RAWLS ROBERTS P.0 Name: KELLERHALS, ERIKA A Title: ATTORNEY Address: PO BOX 6347 ST THOMAS, VI 00804-6347 SSN: 074-72-XXXX Phone: (340) 776-7235 Confidence: Medium 11: Company Name: ROBERTS, MARJORIE RAWLS Name: KELLERHALS, ERIKA A Title: ASSOCIATE Address: PO BOX 6347 ST THOMAS, VI 00804-6347 SSN: 074-72-XXXX Phone: (340) 776-7235 Confidence: High 12: Company Name: THE LALTJ LIMITED PARTNERSHIP Name: KELLERHALS, ERIKA MS Title: CONTACT Address: 17 STATE ST NEW YORK, NY 10004-1501 SSN: 074-72-XXXX Confidence: High 13: Company Name: ERIKA A. KELLERHALS, P.C. Name: KELLERHALS, ERIKA A Title: MEMBER SSN: 074-72-XXXX Phone: (340) 779-2564 Confidence: High 14: Company Name: MARJORIE RAWLS ROBERTS P.0 Name: KELLERHALS, ERIKA A Address: PO BOX 6347 ST THOMAS, VI 00804-6347 SSN: 074-72-XXXX Phone: (340) 776-7235 Confidence: Medium Criminal Filings - 0 records found Cellular & Alternate Phones - 1 records found 1: EFTA01407218 Personal Information Name: KELLERHALS, ERIKA Address: 102 LINCOLN AVE STATEN ISLAND, NY 10306-2459 Phone Number: (340) 690-0891 Phone Type: Mobile For internal use only EFTA01407219 Page 16 Carrier Information Carrier: NEW CINGULAR WRLS GA Carrier City: CHARLOTTE AMALIE (SAINT T Carrier State: VI Sources - 44 records found All Sources Corporate Affiliations Email addresses Historical Person Locator Motor Vehicle Registrations Person Locator 1 Person Locator 2 Phone PhonesPlus Records Professional Licenses Utility Locator Voter Registrations 44 Source Document(s) 2 Source Document(s) 7 Source Document(s) 7 Source Document(s) 3 Source Document(s) 11 Source Document(s) 4 Source Document(s) 4 Source Document(s) 1 Source Document(s) 1 Source Document(s) 3 Source Document(s) 1 Source Document(s) D&B: Not Required LEGAL RESULTS: Court Cases: IN RE: JEFFREY J. PROSSER, Debtor. NORTH SHORE REAL ESTATE CORPORATION, Appellant, v. JAMES P. CARROLL, CHAPTER 7 TRUSTEE, Appellee. Chapter 7, Case No. 06-30009 (JFK), Civil No. 2010-70 United States District Court for the District of the Virgin Islands, St. Thomas & St. John Division 2012 U.S. Dist. LEXIS 93633 July 6, 2012, Filed For internal use only EFTA01407220 Page 2 2012 U.S. Dist. LEXIS 93633, * PRIOR HISTORY: Carroll v. N. Shore Real Estate Corp. (In re Prosser), 2010 Bankr. LEXIS 1566 (Bankr. D.V.I., May 26, 2010) CASE SUMMARY: OVERVIEW: Appellant filed a notice of appeal from a decision of the bankruptcy court. Appellee trustee moved to dismiss the appeal for failure to prosecute under Fed. R. Bankr. P. 8001(a). Of the six Poulis factors, five weighed in favor of dismissal and one weighed against dismissal. The court took into account the possibility that appellant's counsel had some of the responsibility for its failure to follow the court's scheduling order. Nonetheless, on balance, the Poulis factors demonstrated that dismissal of the appeal was an appropriate sanction for appellant's failure to file its brief. OUTCOME: Motion to dismiss granted. CORE TERMS: summary judgment, scheduling, reconsideration, deadline, weigh, failure to prosecute, designation, discovery, failure to comply, affirming, bankruptcy proceedings, extension of time, general denials, citations omitted, genuine issue, effectiveness, reconsider, notice of appeal, failure to follow, bad faith, financial resources, deemed admitted, dilatoriness, non-moving, willful, incur, Bankruptcy Rules, matter of law, personal responsibility, clear error LexisNexis(R) Headnotes Bankruptcy Law > Practice & Proceedings > Appeals > Procedures [HN1] Under Fed. R. Bankr. P. 8001(a), the district court is empowered to dismiss an appeal for failure to prosecute or otherwise follow the procedures set out in the Bankruptcy Rules. Before such a dismissal occurs, a district court must consider six factors outlined in Poulis v. State Farm Fire and Cas. Co. In Poulis, the U.S. Court of Appeals for the Third Circuit stated that a district court must balance the following factors: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) EFTA01407221 the meritoriousness of the claim or defense. Bankruptcy Law > Practice & Proceedings > Appeals > Procedures [HN2] An appeal from a judgment, order, or decree of a bankruptcy judge to a district court or bankruptcy appellate panel shall be taken by filing a notice of appeal with the clerk within the time allowed by Fed. R. Bankr. P. 8002. An appellant's failure to take any step other than timely filing a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the district court or bankruptcy appellate panel deems appropriate, which may include dismissal of the appeal. Fed. R. Bankr. P. 8001(a) (2011). Bankruptcy Law > Practice & Proceedings > Appeals > Procedures For internal use only EFTA01407222 Page 3 2012 U.S. Dist. LEXIS 93633, * [HN3] Not all of the Poulis factors need be met for a district court to find dismissal is warranted. However, courts must consider and balance all six Poulis factors before dismissing a case with prejudice, and all doubts must be resolved in favor of an adjudication on the merits. Bankruptcy Law > Practice & Proceedings > Appeals > Procedures [HN4] Dismissal typically occurs in cases showing consistently dilatory conduct or the complete failure to take any steps other than the mere filing of a notice of appeal. Bankruptcy Law > Practice & Proceedings > Appeals > Procedures [HN5] A client's lack of responsibility for its counsel's dilatory conduct is not dispositive on a motion to dismiss for failure to prosecute, because a client cannot always avoid the consequences of the acts or omissions of its counsel. Bankruptcy Law > Practice & Proceedings > Appeals > Procedures [HN6] Prejudice for the purpose of the Poulis factors does not mean irremediable harm. Rather, the burden imposed by impeding the opposing party's ability to prepare a meaningful litigation strategy has been held to be sufficiently prejudicial. Bankruptcy Law > Practice & Proceedings > Appeals > Procedures [HN7] The third Poulis factor considers the appellant's history of dilatoriness. Bankruptcy Law > Practice & Proceedings > Appeals > Procedures [HN8] Either of these violations--failing to comply with the Bankruptcy Rules for filing a brief within 15 days of the docketing of his appeal or providing for the transcript of the bankruptcy court proceedings--is grounds for a dismissal under Fed. R. Bankr. P. 8001. Bankruptcy Law > Practice & Proceedings > Appeals > Procedures [HN9] The fourth Poulis factor considers whether the conduct of the appellant or of the appellant's attorney was willful or in bad faith. Bankruptcy Law > Practice & Proceedings > Appeals > Procedures [HN10] The fifth Poulis factor assesses the effectiveness of sanctions other than dismissal. Bankruptcy Law > Practice & Proceedings > Appeals > Procedures [HN11] The sixth Poulis factor considers the meritoriousness of the appellant's claim. Ordinarily, a claim, or defense, will be deemed meritorious when the allegations of the motion, if established, would support recovery by plaintiff or would constitute a complete defense. EFTA01407223 Bankruptcy Law > Practice & Proceedings > Adversary Proceedings > Judgments & Remedies Bankruptcy Law > Practice & Proceedings > Appeals > Standards of Review > General Overview Civil Procedure > Summary Judgment > Standards > General Overview For internal use only EFTA01407224 Page 4 2012 U.S. Dist. LEXIS 93633, * [HN12] In reviewing a determination of a bankruptcy court's grant of summary judgment, a reviewing court subjects the bankruptcy court's legal determinations to plenary review, reviewing its factual findings for clear error, and considering its exercise of discretion for abuse thereof. A bankruptcy court may grant summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Civil Procedure > Summary Judgment > Burdens of Production & Proof > General Overview [HN13] The movant has the initial burden of showing that there is no genuine issue of material fact. Once the initial burden is met it shifts to the non-moving party to establish specific facts showing there is a genuine issue for trial. The non-moving party may not rest upon mere allegations, general denials, or vague statements. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Civil Procedure > Summary Judgment > Evidence [HN14] At the summary judgment stage, the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. In making this determination, the court draws all reasonable inferences in favor of the non-moving party. Bankruptcy Law > Practice & Proceedings > Adversary Proceedings > Discovery Civil Procedure > Discovery > Methods > Admissions > General Overview [HN15] Fed. R. Bankr. P. 7036 provides that Fed. R. Civ. P. 36 applies in adversary bankruptcy proceedings. Civil Procedure > Discovery > Methods > Admissions > Responses [HN16] See Fed. R. Civ. P. 36(a)(3), (a)(4). Civil Procedure > Discovery > Methods > Admissions > Responses [HN17] Under Fed. R. Civ. P. 36, specific denials which fairly respond to the substance of the matter are required. Civil Procedure > Discovery > Methods > Admissions > General Overview Civil Procedure > Summary Judgment > Supporting Materials > Discovery Materials [HN18] The U.S. Court of Appeals for the Third Circuit has long recognized EFTA01407225 that deemed admissions are sufficient to support orders of summary judgment. Bankruptcy Law > Case Administration > Examiners, Officers & Trustees > Preferential Transfers > Elements > General Overview [HN19] To establish a claim for avoidance of a preferential transfer pursuant to 11 U.S.C.S. § 547, a party must establish that the transfer was: 1. to or for the benefit of a creditor; 2. for or on account of an antecedent debt owed by the debtor before such transfer was made; 3. made while the debtor was insolvent; 4. made -- on or within 90 For internal use only EFTA01407226 Page 5 2012 U.S. Dist. LEXIS 93633, * days before the date of the filing of the petition; 5. that enables such creditor to receive more than such creditor would receive if -- a. the case were a case under Chapter 7 of this title; b. the transfer had not been made; and c. such creditor received payment of such debt to the extent provided by the provisions 547(b). Bankruptcy Law > Case Administration > Examiners, Fraudulent Transfers > Elements [HN20] To establish a claim for avoidance to 11 U.S.C.S. 548(a)(1)(B), a party date, the debtor received less than transfer or obligation, and: 1. was such obligation was incurred, obligation; 2. was engaged in business a transaction, for which any property capital; 3. intended to incur, or believed be beyond the debtor's ability to pay as or for the benefit of an insider, or incurred insider, under an employment contract and not in the ordinary course of business. Bankruptcy Law > Case Administration > Examiners, Officers & Trustees Fraudulent Transfers > General Overview [HN21] To establish a claim for the avoidance pursuant to 11 U.S.C.S. § 548(a)(1)(A), a party mush petition date, the debtor made such transfer or incurred delay, or defraud any entity to which the debtor that such transfer was made or such obligation Bankruptcy Law > Case Administration Postpetition Transactions [HN22] To establish a claim for the recovery pursuant to 11 U.S.C.S. § 549, the appropriate property occurred; (2) whether the property transferred was property of the estate; (3) whether the of this title. 11 U.S.C.S. Officers & Trustees of a fraudulent transfer must show that within two (2) years of the > pursuant petition a reasonably equivalent value in exchange for such insolvent on the date that such transfer was made or or became insolvent as result of such transfer or or a transaction, remaining with that or was about to engage in business or the the debtor was debtor would an unreasonably small incur, debts that would such debts matured; or 4. made such transfer such obligation to or for the benefit of an show of a fraudulent that within two transfer years of the to such obligation with intent to hinder, was or became, on or after the date was incurred, indebted. > Examiners, Officers & Trustees > of a post-petition transfer inquiry is: (1) whether a transfer of EFTA01407227 transfer occurred after commencement of the bankruptcy case; and (4) whether the transfer was authorized by the Bankruptcy Code. Civil Procedure > Summary Judgment > Burdens of Production & Proof > Nonmovants [HN23] See Fed. R. Civ. P. 56(e). Bankruptcy Law > Practice & Proceedings > Appeals > Standards of Review > General Overview Civil Procedure > Judgments > Relief From Judgment > Motions to Alter & Amend [HN24] A bankruptcy court's denial of an appellant's motion for reconsideration is generally reviewed for abuse of discretion. However, to the extent that the denial of reconsideration is predicated on an issue of law, such an award is reviewed de novo; to the extent that the For internal use only EFTA01407228 Page 6 2012 U.S. Dist. LEXIS 93633, * trial court's disposition of the reconsideration motion is based upon a factual finding, it is reviewed for clear error. Civil Procedure > Judgments > Relief From Judgment > Motions to Alter & Amend [HN25] See D.V.I., R. 7.3. Civil Procedure > Judgments > Relief From Judgment > Motions to Alter & Amend [HN26] The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence. Such motions are not substitutes for appeals, and are not to be used as a vehicle for registering disagreement with the court's initial decision, for rearguing matters already addressed by the court, or for raising arguments that could have been raised before but were not. Civil Procedure > Judgments > Relief From Judgment > Motions to Alter & Amend [HN27] A motion for reconsideration cannot be used to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment. Bankruptcy Law > Practice & Proceedings > Appeals > Procedures [HN28] A claim will be deemed meritorious when the allegations, if established, would support recovery by the claimant. COUNSEL: [*1] Jeffrey B. C. Moorhead, Esq., Jeffrey B. C. Moorhead, P.C., St. Croix, USVI, For North Shore Real Estate Corp. Christopher A. Kroblin, Esq., Erika Kellerhals, P.C., St. Thomas, USVI, For North Shore Real Estate Corp. Bernard C. Pattie, Esq., Law Offices of Barnard Pattie, P.C., St. Croix, USVI, For James P. Carroll. Fred Stevens, Esq., Fox Rothschild LP, New York, NY, For James P. Carroll. JUDGES: GOMEZ, Chief Justice. OPINION BY: Curtis V. Gomez OPINION MEMORANDUM OPINION (July 6, 2012) Before the Court is the motion by James P. Carroll to dismiss this appeal for lack of prosecution. I. FACTUAL AND PROCEDURAL BACKGROUND For internal use only EFTA01407229 Page 7 2012 U.S. Dist. LEXIS 93633, * On June 30, 2010, North Shore Real Estate a notice of appeal from the May 26, 2010, judgment of for the District of the Virgin Islands (the "Bankruptcy 2010, order of the Bankruptcy Division denying North Shore's July 9, 2010, the Court entered an Order stating Appellant shall, not later than 10 and serve on the other parties the record and statement of the issues Appeal may be dismissed for failure to prosecute ... . • 6 0 Appellant's brief shall be filed and served within 30 days of the date of this Order, or if the designated record includes a transcript, within 15 days after the transcript is filed, whichever comes later (Order 1-2, July 9, 2010, ECF No. 2). North Shore did not file a designation of record nor a statement of the issues within the time provided in the July 9, 2010, order. North Shore did not file its brief within the time provided in the order. On March 9, 2011, North Shore filed a motion for leave to file an untimely designation of record, statement of issues, and brief. North Shore attached to its motion a designation of record and statement of issues. North Shore did not attach a brief. Subsequently, James P. Carroll, Chapter 7 Trustee ("Carroll"), filed a motion to dismiss this matter for lack of prosecution. North Shore did not file an opposition. On March 28, 2012, this Court entered an order stating that: • North Shore shall, not later than April 2, 2012, file and serve on James P. Carroll the designation of record and a statement of issues to be presented, failing which this appeal may be dismissed [*3] for failure to prosecute... • North Shore's brief shall, not later than April 10, 2012, be filed and served on James P. Carroll, failing which this appeal may be dismissed for failure to prosecute... (March 28, 2012, Order 3-4, ECF No. 8). The Court found as moot the motions filed by North Shore and Carroll. North Shore did not file a designation of record nor a statement of the issues within the time provided in the March 28, 2012, order. North Shore did not file its brief within the time provided in the order. Carroll now moves again for dismissal of this appeal for lack of Corporation ("North Shore") filed the United States Bankruptcy Court motion Division"), for and the June reconsideration. On 9, that: days after the date of this Order, file designation of to be presented, [*2] failing which the EFTA01407230 prosecution. North Shore has not filed an opposition. II. DISCUSSION [HN1] "Under Rule 8001(a) 1 of the Federal Rules of Bankruptcy Procedure, the District dismiss an appeal for failure to prosecute or Court is empowered to otherwise follow the procedures set out in Contractors, Inc., 189 Fed. Appx. 93, at however, a district court must Fire and Cas. Co., For internal use only the Bankruptcy Rules." In re Richardson Industrial *96 (3d Cir. 2006). Before such a dismissal occurs, consider six factors outlined in Poulis v. State Farm EFTA01407231 Page 8 2012 U.S. Dist. LEXIS 93633, * 747 F.2d 863, 868 (3d Cir. 1984) [hereinafter Poulis]. In Poulis, the Third Circuit stated that a district court [*4] must balance the following factors: 1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Id. (explaining that "dismissal is a drastic sanction and should be reserved for those cases where there is a clear record of delay or contumacious conduct by the plaintiff")(alteration in original); see also In re E Toys Inc., 263 Fed. Appx. 235, 237 (3d Cir. 2008) (affirming the district court's dismissal of a bankruptcy appeal for failure to prosecute upon consideration of the Poulis factors). 1 [HN2] "An appeal from a judgment, order, or decree of a bankruptcy judge to a district court or bankruptcy appellate panel ... shall be taken by filing a notice of appeal with the clerk within the time allowed by Rule 8002. An appellant's failure to take any step other than timely filing a notice of appeal [*5] does not affect the validity of the appeal, but is ground only for such action as the district court or bankruptcy appellate panel deems appropriate, which may include dismissal of the appeal... ." FED. R. BANKR. P. 8001(a) (2011). [HN3] "Not all of the[] Poulis factors need be met for a district court to find dismissal is warranted." Hicks v. Feeney, 850 F.2d 152, 156 (3d Cir. 1988). However, courts must consider and balance all six Poulis factors before dismissing a case with prejudice, and all doubts must be resolved in favor of an adjudication on the merits. See $8,221,877.16 in U.S. Currency, 330 F.3d 141, 161 (3d Cir. 2003) ("[W]e have always required consideration and balancing of all six of the factors, and have recommended the resolution of any doubts in favor of adjudication on the merits."); see also Bjorgung, 197 Fed. Appx. at 125-26 ("Although '[n]ot all of the Poulis factors need be satisfied in order to dismiss a complaint' they must all be considered") (quoting Mindek v. Rigatti, 964 F.- 2d 1369, 1373 (3d Cir. 1992)). III. ANALYSIS In In re Richardson Industrial Contractors, Inc., 189 Fed. Appx. 93 (3d Cir. 2006), the EFTA01407232 United States Court of Appeals for the Third Circuit addressed [*6] the relevant factors that a district court must consider before dismissing a bankruptcy appeal for failure to prosecute. In that case, the district court dismissed a creditor's appeal with prejudice for failure to comply with the mandates of the Federal Rules of Bankruptcy Procedure. In so doing, the district court considered only two of the six Poulis factors: the creditor's bad faith in requesting a second extension of time in which to file his brief and the ineffectiveness of alternative sanctions. The creditor appealed the district court's decision. On appeal, the Third Circuit found that, in addition to not considering all six Poulis factors, the district court's discussion of two factors was limited and did not set out the basis for its conclusions in such a way to permit meaningful review of its decision. In reviewing similar cases in other circuits, the Richardson court noted that [HN4] " '[d]ismissal typically occurs in cases showing consistently dilatory conduct or the complete failure to take any steps other than the mere filing of a notice of appeal.' " Richardson, 189 For internal use only EFTA01407233 Page 9 2012 U.S. Dist. LEXIS 93633, * Fed. Appx. 93, at *97 (quoting In re Beverly Mfg. Corp., 778 F.2d 666, 667 (11th Cir. 1985)); see also Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) [*7] (upholding dismissal of bankruptcy appeal for failure to follow Bankruptcy Rules or timely file appeal brief where plaintiffs provided no explanation or excuse for noncompliance); In re Champion, 895 F.2d 490, 492 (8th Cir. 1990) (finding no abuse of discretion in dismissing appeal where appellant had not filed designation of record or statement of issues required by Bankruptcy Rule 8006); In re Tampa Chain Co., 835 F.2d 54, 56 (2d Cir. 1987) (affirming dismissal of bankruptcy appeal for failure to file a brief for seven months after the due date or provide any explanation for the failure, even after the court's inquiry into delinquency). Given that backdrop, the Court will now assess whether the Poulis factors favor or disfavor dismissal. 1. Extent of North Shore's Personal Responsibility The first Poulis factor assesses the extent of the appellant's personal responsibility. 747 F.2d at 868. North Shore has suggested that its counsel is responsible for its failure to follow the Court's scheduling order. North Shore averred that, Defendant, Chapter 7 Debtor Jeffrey J. Prosser (Case No. 06-30009), and his family, including Dawn Prosser, the owner of North Shore, are overwrought and under [*8] assault with numerous and often duplicate suits replete with continuous motions and actions... (Appellant's Mem. Supp. Mot. Leave to File Untimely Resp. 2, ECF No. 4). North Shore also contended that it is "without adequate number of counsel that have the time continuous assault and actions..." Id. North Shore with far too small group [sic] of counsel and others and what effort they can, when possible, for little, or Id. Indeed, North Shore referred generally to the commotion of the bankruptcy proceedings in explaining its failure to comply with the original scheduling order in this matter. North Shore the financial resources to employ an availability to meet the relentless and went on to aver that it has which have "mounted a defense committed what time they can in most cases, for no compensation." EFTA01407234 also pointed to the limited size of its legal team and financial resources. Because it seems that North Shore's counsel was at least somewhat responsible for North Shore's failure to comply with the Court's original scheduling order, the first Poulis factor does not necessarily weigh in favor of dismissal. However, [HN5] North Shore's "lack of responsibility for [its] counsel's dilatory conduct [*9] is not dispositive, because a client cannot always avoid the consequences of the acts or omissions of its counsel." See Poulis, 747 F.2d at 868; see also Ware v. Rodale Press, Inc., 322 F.3d 218, 222 (3d Cir. 2003)("[E]ven assuming that WCI does not bear responsibility for its counsel's conduct, consideration of the remaining factors still compels affirming the District Court's decision to sanction WCI and dismiss the breach of contract claim."); cf. Lee v. Sunrise Senior Living, 455 Fed. Appx. 199, 201-202 (3d Cir. 2011) (finding that the pro se plaintiff was "fully responsible for her conduct.") The Court also notes that North Shore has not offered any explanation for its failure to comply with the March 28, 2012, scheduling order. For internal use only EFTA01407235 Page 10 2012 U.S. Dist. LEXIS 93633, * 2. Prejudice to Carroll The second Poulis factor considers prejudice to the appellee caused by the appellant's failure to meet scheduling orders and respond to discovery. 747 F.2d at 868. [HN6] Prejudice for the purpose of the Poulis factors "does not mean 'irremediable harm.'" See Ware, 322 F.3d at 222; see also Curtis T. Bedwell and Sons, Inc. v. Int'l Fidelity Ins. Co., 843 F.2d 683, 693-94 (3d Cir. 1988) (rejecting the argument that "the district [*10] court should not have dismissed its claim unless the harm to the other parties amounted to 'irremediable prejudice'"). Rather, the burden imposed by impeding the opposing party's ability to prepare a meaningful litigation strategy has been held to be sufficiently prejudicial. See Ware, 322 F.3d at 222. Carroll argues that he has "incurred costs and fees of bringing the underlying adversary proceeding and opposing North Shore's late filings." (Carroll's Opp'n Mot. Leave to File Untimely Resp. 5, ECF No. 5). Carroll also argues that he "should not be made to incur the additional costs to oppose an appeal that North Shore failed to address for several months, particularly when North Shore's current default merely continues its dilatory performance in the underlying bankruptcy proceeding." Id. Additional costs and fees do not necessarily amount to prejudice. However, it is clear that North Shore's conduct has prejudiced Carroll by hampering his ability to resolve the underlying bankruptcy matter. See Lee, 455 Fed. Appx. at 201-202 (finding that the plaintiff's conduct prejudiced the defendants by "impeding their efforts to resolve [the] case, causing them to file unnecessary [*11] motions, and requiring them to incur extra expenses.") The Court also notes that the Bankruptcy Division has stayed execution as to the bank account involved in the underlying matter, pending resolution of this appeal. Consequently, North Shore's lengthy delay has had an impact on the Bankruptcy Division's proceedings. Thus, the Court finds that the second Poulis factor weighs in favor of dismissal. 3. History of Dilatoriness EFTA01407236 [HN7] The third Poulis factor considers the appellant's history of dilatoriness. 747 F.2d at 868. North Shore did not file its brief within the original time period set by the Court. North Shore also failed to move for an extension of time within which to file its brief until more than six months after the Court's deadline. Additionally, North Shore did not file its brief within the extended time period set by the Court. Indeed, rather than trying to make up for lost time in the more than seven months since its brief was originally due, North Shore has elected not to file even a brief in compliance with the Court's extended time period. Similarly, North Shore did not file oppositions to Carroll's motions to dismiss this appeal. The Court also notes the history leading [*12] up to this appeal. As the Bankruptcy Court noted in its May 26, 2010, judgment, As established by the record of the entire Adversary and the docket, North Shore has set upon a pattern and practice of filing pleadings after the deadlines have passed: (1) North Shore's initial opposition to the first Motion for Summary Judgment was due on November 2, 2008, but was actually filed on November 30, 2009, more than a year after the due date. (2) North Shore obtained leave of court to file a late opposition to Trustee's motion for entry of default and default judgment, having missed that deadline. (3) North Shore filed a late response to the renewed Motion for Summary For internal use only EFTA01407237 Page 11 2012 U.S. Dist. LEXIS 93633, * Judgment, without seeking leave of court. (4) North Shore has never complied with the discovery deadlines. North Shore apparently views court-imposed deadlines as suggestions rather than as Orders compelling timely performance. (May 26, 2010, Bankr. Summ. J. 7, ECF No. 1, Ex. 3). North Shore has a sufficient history of dilatoriness in this matter such that the third Poulis factor weighs in favor of dismissal. See, e.g., Buccolo, 308 Fed. Appx. 574, at *575 (affirming district court's dismissal of the bankruptcy appeal for failure [*13] to prosecute where appellant "did not comply with the Bankruptcy Rules for filing a brief within 15 days of the docketing of his appeal Bankruptcy Court proceedings..." noting that [HN8] "[e]ither of these violations is grounds for dismissal under Bankruptcy Rule 8001"). 4. Willfulness and Bad Faith [HN9] The fourth Poulis factor considers whether the conduct of the appellant or of the appellant's attorney was willful or in bad faith. 747 F.2d at 868. North Shore failed to comply with the Court's original scheduling order, failed to move for an extension of time within which to file its brief until filing deadline, and has failed to comply with the Court's its failure to follow the Court's original scheduling order, hustle and bustle of the bankruptcy proceedings. of its legal team and financial resources. North Shore's explanations for file an appellant's brief or timely move for an extension Shore has demonstrated a willful [*14] for the appellate process in general See, e.g., In re Toys Inc., 263 Fed. Appx. 238 (finding that "the record provides a basis to conclude that [the appellant's] conduct showed willful disregard for the appellate process" because "[h]e ignored the deadlines issued by the District Court") The fourth Poulis factor therefore weighs in favor of dismissal. 5. Effectiveness of Alternative Sanctions • • • more than six months after the original new scheduling order. In explaining North Shore referred generally to the North Shore also pointed to the size its delays are unpersuasive. By failing to of time within which to do so, North disregard for the Court's scheduling orders or for providing for the transcript of the and at EFTA01407238 [HN10] The fifth Poulis factor assesses the effectiveness of sanctions other than dismissal. 747 F.2d at 868. North Shore has not suggested any such sanctions. A possible alternative to dismissal would be to grant North Shore an extension of time within which to file its appellant's brief. However, the Court has already granted such an extension. Granting any further extension would reward North Shore's blatant failure to comply with this Court's orders by allowing it to file an opening brief more than 22 months after the commencement of its appeal. The Court could also impose a fine against North Shore's counsel as a penalty for its failure to comply with the scheduling orders in this matter. See Poulis, 747 F.2d at 869. Alternatively, the Court could [*15] consider the propriety of ordering North Shore to pay Carroll's attorney's fees associated with filing the instant motion. See id. However, North Shore has made it clear that its financial resources available to prosecute this matter are very limited. Thus, it is unlikely that North Shore will have the ability to comply with a For internal use only EFTA01407239 Page 12 2012 U.S. Dist. LEXIS 93633, * sanctions order. Additionally, the ineffectiveness of the Court's prior orders setting deadlines for North Shore to file its appellant's brief, as well as North Shore's failure to respond to Carroll's motions to dismiss gives the Court reason to doubt the effectiveness of such sanctions. North Shore has demonstrated little urgency in litigating its appeal. In addition to not filing a timely brief, it has elected not to file an opposition to Carroll's motions to dismiss. As such, the Court doubts the effectiveness of alternative sanctions. Cf. Richardson, 189 Fed. Appx. 93, at *98 (finding dismissal inappropriate where appellant requested two extensions and filed his brief prior to the District Court's order of dismissal). Based on North Shore's absence thus far it is not evident that alternative sanctions will prompt it to take action in prosecuting this appeal. [*16] Thus, the ineffectiveness of alternative sanctions weighs in favor of dismissal. 6. Merit of North Shore's Appeal [HN11] The sixth Poulis factor considers the meritoriousness of the appellant's claim. 747 F.2d at 868. "Ordinarily, '[a] claim, or defense, will be deemed meritorious when the allegations of the [motion], if established [], would support recovery by plaintiff or would constitute a complete defense." Buccolo, 308 Fed. Appx. 574, at n.1 (quoting Poulis, 747 F.2d at 869-70). In this appeal, North Shore challenges the Bankruptcy Division's grant of summary judgment to Carroll in the amount of $115,140. North Shore also challenges the Bankruptcy Division's decision to deny its motion for reconsideration of the summary judgment. a. Summary Judgment [HN12] In reviewing a determination of a bankruptcy court's grant of summary judgment, a reviewing court subjects the bankruptcy court's "legal determinations to plenary review, reviewing its factual findings for clear error, and considering its exercise of discretion for abuse thereof." In re Atamian, 300 Fed. Appx. 175, 176 (3d Cir. 2008)- (citations omitted). A bankruptcy court may grant summary judgment if "the pleadings, the discovery and EFTA01407240 disclosure [*17] materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c) (hereafter referred to as "Rule 56(c)"); see also Hersh v. Allen Products Co., 789 F.2d 230, 232 (3d Cir. 1986). [HN13] The movant has the initial burden of showing that there is no genuine issue of material fact. Gans v. Mundy, 762 F.2d 338, 342 (3d Cir. 1985). Once the initial burden is met it shifts to the non-moving party to establish specific facts showing there is a genuine issue for trial. Id. The non-moving party "may not rest upon mere allegations, general denials, or ... vague statements Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). [HN14] "[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine For internal use only EFTA01407241 Page 13 2012 U.S. Dist. LEXIS 93633, * issue for trial." Id. In making this determination, this Court draws all reasonable [*18] inferences in favor of the non-moving party. See Bd. of Educ. v. Earls, 536 U.S. 822, 850, 122 S. Ct. 2559, 153 L. Ed. 2d 735 (2002); see also Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). In Carroll's motion for summary judgment he sought "a determination that $72,720 in prepetition transfers and $42,420 in postpetition [sic] transfers from Debtor to North Shore Real Estate Corporation were fraudulent transfers, preferences or otherwise avoidable pursuant to 11 U.S.C. §§ 544, 547, 548 and 549, and recoverable under § 550." (May 26, 2010, Bankr. Summ. J. Mem. Op. 1, ECF No. 1, Ex. 3)(citation omitted) Carroll asserted that "North Shore [] failed to respond to the Trustee's discovery requests, and ... all of the Requests for Admissions were deemed admitted and, accordingly, there [were] no genuine issues of material fact and matter of law." (Carroll Renewed Mot. Summ. 08-03048, ECF No. 30). North Shore asserted in its it indeed responded to Carroll's requests response came in the form of the affidavit of Dawn Prosser, wife of the debtor [*19] in the underlying bankruptcy proceedings. After reviewing the record, failed to respond to or answer any of Requests for Admissions." (May 26, 2010, As such, it determined that the [HN15] Federal Rule of Civil Procedure 36 applies Federal Rules of Civil Procedure, [HN16] (a) ... (3) Time to Respond; within 30 days after being served, the party to whom the request is directed serves on the the Trustee [was] entitled to judgment as a J. 1 4, Bankr. Case No. 06-30009, Adv. Pro. No. opposition to Carroll's motion to dismiss that for admission. It explained that its the bankruptcy court found that "North Shore [] Trustee's discovery requests, including the ... Bankr. Summ. J. Mem. Op. 2, ECF No. 1, Ex. 3). requests for admissions were deemed admitted. of Bankruptcy Procedure 7036 provides that Federal Rule in adversary bankruptcy proceedings. Rule 36 of the in pertinent part, provides Effect of Not Responding. A matter is admitted unless, EFTA01407242 requesting party a written answer or objection addressed to the matter and signed by the party or its attorney... . (4) Answer. If a matter is not admitted, the answer must specifically deny or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify [*20] the party admitted and qualify or deny the rest. The answering party may assert a lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is in sufficient to enable it to admit or deny. FED. R. CIV. P. 36 (a)(3), (a)(4). After reviewing Dawn Prosser's affidavit, the Court finds that the numbered paragraphs in the affidavit do not correspond to Carroll's numbered requests for admission. Looking at the substance of the affidavit, the Court finds that the affidavit does not address all of Carroll's requests for admission. 2 deemed denied. See FED. R. CIV. P. 36 (a)(3). For internal use only The requests for admission which are not addressed are EFTA01407243 Page 14 2012 U.S. Dist. LEXIS 93633, * 2 The requests which are not addressed in Dawn Prosser's affidavit are numbers 2, 3, 4, 12, 14, 15, 17, 19, 20, 21, and 23. Furthermore, the requests for admission which are addressed in the affidavit 3 are simply general denials, such as "I deny that..." (See Dawn Prosser Aff. ¶¶ 2-12). The denials lack any substance or explanation. Such general denials do not comply with the requirements of Federal Rule of Civil Procedure 36. See FED. R. CIV. P. 36 [*21] (requiring [HN17] specific denials which "fairly respond to the substance of the matter.") As such, the generally denied requests for admission are deemed admitted. See id. 3 Dawn Prosser's affidavit is written so as to generally deny the information in requests 1, 5, 6, 7, 8, 9, 10, 11, 13, 16, 18, and 22. (Dawn Prosser Aff. ¶¶ 2-12). There are no facts or evidence identified upon which the denials are based. [HN18] The Third Circuit has long recognized that deemed admissions "are sufficient to support orders of summary judgment." Kelvin Cryosystems Inc. v. Lightnin, 252 Fed. Appx. 469, 472 (3d Cir. 2007)(citations omitted); see also DIRECTV, Inc. v. Jarvis, 262 Fed. Appx. 413, 416 (3d Cir. 2008) (affirming the district court's entry of summary judgment based on the appellant's failure to respond to requests for admission) [HN19] To establish a claim for avoidance of a preferential transfer pursuant to 11 U.S.C. § 547, a party must establish that the transfer was: 1. to or for the benefit of a creditor; 2. for or on account of an antecedent debt owed by the debtor before such transfer was made; 3. made while the debtor was insolvent; 4. made -- on or within 90 days before the date of the filing of the petition; [*22] 5. that enables such creditor to receive more than such creditor would receive if -a. the case were a case under Chapter 7 of this title; b. the transfer had not been made; and c. such creditor received payment of such debt to the extent provided by the provisions of this title 11 U.S.C. § 547(b). [HN20] To establish a claim for avoidance of a fraudulent transfer pursuant to 11 U.S.C. § 548(a)(1)(6), a party must show that within two (2) years of the petition date, the debtor received less than a reasonably equivalent value in exchange for such transfer or EFTA01407244 obligation, and: 1. was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as result of such transfer or obligation; 2. was engaged in business or a transaction, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital; 3. intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor's ability to pay as such debts matured; or 4. made such transfer to or for the benefit of an insider, or incurred such obligation to or for the benefit of an insider, under an employment contract and [*23] not in the ordinary course of business. 11 U.S.C. § 548(a)(1)(6). For internal use only EFTA01407245 Page 15 2012 U.S. Dist. LEXIS 93633, * [HN21] To establish a claim for the avoidance of a fraudulent transfer pursuant to 11 U.S.C. § 548(a)(1)(A), a party mush show that within two years of the petition date, the debtor made such transfer or incurred such obligation with intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted. [HN22] To establish a claim for the recovery of a post-petition transfer pursuant to 11 U.S.C. § 549, the appropriate inquiry is: (1) whether a transfer of property occurred; (2) whether the property transferred was property of the estate; (3) whether the transfer occurred after commencement of the bankruptcy case; and (4) whether the transfer was authorized by the Bankruptcy Code. 11 U.S.C. § 549. Pursuant to 11 U.S.C. § 550, a trustee may recover transfers avoided under 11 U.S.C. §§ 544, 547, 548, and 549, for the benefit of the estate, the property transferred, or if the court so orders, the value of such property, form the initial transferee of such transfer or the entity for whose benefit such transfer was made. Requests for admission [*24] numbered 1, 5, 6, 7, 8, 9, 10, 11, and 13, 16, 18, 22, and 23, correspond to the elements required to establish each of Carroll's claims. Each relevant request was deemed admitted. Thus, the bankruptcy court did not err in finding that there remained no genuine issue as to any material fact. As such, the burden was properly shifted to North Shore to show a genuine issue remaining for trial. North Shore did not present any evidence in support of judgment in its favor. It merely pointed the court again to Dawn Prosser's affidavit. As previously discussed, the affidavit contains only general denials. Such general denials are not sufficient to satisfy North Shore's burden of proof. See FED. R. CIV. P. 56(e) ( [HN23] "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.") Thus, the bankruptcy court did not err in finding that North Shore failed to meet its burden. EFTA01407246 Based on a plenary review of the record, the Court finds that each of the elements required to establish Carroll's claims were [*25] satisfied by facts underlying North Shore's deemed admissions. As such, the bankruptcy court did not err in concluding that Carroll was entitled to judgment as a matter of law. b. Motion for Reconsideration In denying North Shore's motion for reconsideration, the Bankruptcy Division found that North Shore pointed to no newly discovered evidence or any other basis for a grant of reconsideration. [HN24] A bankruptcy court's denial of an appellant's motion for reconsideration is generally reviewed for abuse of discretion. See generally Max's Seafood Café v Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). "However, to the extent that the denial of reconsideration is predicated on an issue of law, such an award is reviewed de novo; to the extent that the [trial court's] disposition of the reconsideration motion is based upon a factual finding, it is reviewed for clear error." Id. Local Rule of Civil Procedure 7 3 provides that: For internal use only EFTA01407247 Page 16 2012 U.S. Dist. LEXIS 93633, * [HN25] A party may file a motion asking the court to reconsider its order or decision... . A motion to reconsider shall be based on: 1. Intervening change in controlling law; 2. Availability of new evidence, or; 3. The need to correct clear error or prevent manifest injustice LRCI 7.3 (2008). [*26] [HN26] The purpose of a motion for reconsideration "is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Such motions are not substitutes for appeals, and are not to be used as "a vehicle for registering disagreement with the court's initial decision, for rearguing matters already addressed by the court, or for raising arguments that could have been raised before but were not." Bostic v. AT&T of the V.I., 312 F.Supp. 2d 731, 733, 45 V.I. 553 (D.V.I. 2004). In its motion for reconsideration, North Shore made two arguments. First, it argued that the bankruptcy court should reconsider because it improperly failed to consider Dawn Prosser's affidavit in deciding Carroll's motion for summary judgment. That argument is unsupported by the record. This Court has herein cited to numerous references in the bankruptcy court's memorandum opinion where it refers to and analyzes the substance of Dawn Prosser's affidavit. As such, the bankruptcy court did not err in refusing to reconsider on that basis. Second, North Shore argued that the court should grant its motion because the underlying complaint contains "factually [*27] untrue" allegations. (North Shore Mot Recons. 6-7, Adv. Pro. No. 08-03048, ECF No. 36). That argument ignores the numerous opportunities which North Shore had to oppose Carroll's factual assertions. Carroll served North Shore with various requests for discovery, including requests for admissions. North Shore failed to adequately respond to such requests. Thereafter, Carroll filed two motions for summary judgment. North Shore had the opportunity to file oppositions to each of those motions. Although North Shore was tardy in filing such oppositions, the bankruptcy court nonetheless considered them in its EFTA01407248 memorandum opinion. Finally, the bankruptcy court held a hearing on Carroll's second motion for summary judgment. North Shore had the opportunity to challenge any of Carroll's factual assertions and to submit any evidence in support of its challenges at that hearing. North Shore failed to submit sufficient evidence supporting its assertions at that time. [HN27] "A motion for reconsideration cannot be used to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment." See Dunkley v. Mellon Investor Servs., 378 Fed. Appx. 169, 172 (3rd Cir. 2010)(internal [*28] citation omitted). Yet, that is precisely what North Shore has done. Indeed, the information that North Shore presents was available to it at the time when it filed its opposition to Carroll's motion for summary judgment. In an effort to relitigate this matter, North Shore now seeks to rehash procedurally admitted factual issues. That effort is not For internal use only EFTA01407249 Page 17 2012 U.S. Dist. LEXIS 93633, * supported by the law. See id As such, the bankruptcy court did not err in refusing to reconsider on that basis. Upon review of the Bankruptcy Division's summary judgment and order denying reconsideration, the Court finds that the likelihood that North Shore could successfully challenge the bankruptcy court's exercise of its broad discretion as to such matters is minimal. Thus, the final Poulis factor weighs in favor of dismissal. Cf. Buccolo, 308 Fed. Appx. 574, at n.1 ( [HN28] "[a] claim ... will be deemed meritorious when the allegations ... if established [], would support recovery by" the claimant) (internal citations omitted) (first alteration in the original). IV. CONCLUSION Of the six Poulis factors, five weigh in favor of dismissal and one weighs against dismissal. The Court takes into account the possibility that North Shore's counsel bears [*29] some of the responsibility for its failure to follow the Court's scheduling order. Nonetheless, on balance, the Poulis factors demonstrate that dismissal of this appeal is an appropriate sanction for North Shore's failure to file its appellant's brief, or otherwise comply with this Court's scheduling orders. See In re Buccolo, 308 Fed. Appx. 574, 576 (3d Cir. 2009)(finding that "even if the consideration of the merits of [the appellant's] claim or defense does not tip the scales for or against dismissal, it cannot be said that the District Court abused its discretion in concluding that on balance, dismissal was warranted.")(emphasis added); In re E Toys Inc., 263 Fed. Appx. 235, 238 (3d Cir. 2008) (affirming the district court's ruling that the Poulis factors favored dismissal of a bankruptcy appeal as a sanction for the appellant's "repeated failures to adhere to ordered briefing deadlines"). For the reasons discussed above, the Court will grant Carroll's motion to dismiss for failure to prosecute. An appropriate order follows. JULITO A. FRANCIS, Petitioner v. DEBRA L. WRIGHTFRANCIS, Respondent Family No. ST-10-DI-226 Superior Court of the Virgin Islands, Division of St. Thomas and St. John 2014 V.I. LEXIS 45; 61 V.I. 13 EFTA01407250 July 14, 2014, Decided July 14, 2014, Filed For internal use only EFTA01407251 Page 18 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** 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 from his mother, the husband was awarded possession under V.I. Code Ann. tit. 33, § 2305(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; [3]-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 and real property, limited to the marital homestead as defined in V.I. Code Ann. tit. 33, § 2305(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 EFTA01407252 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, equitable distribution does not necessarily mean "equal," only "equitable." Family Law > Marital Duties & Rights > Property Rights > Homestead Rights [HN2] Pursuant to V.I. Code Ann. tit. 33, § 2305(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 For internal use only EFTA01407253 Page 19 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** 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 § 2305(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 [HN3] 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 [HN4] 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 [HN5] 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, EFTA01407254 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. Family Law > Marital Termination & Spousal Support > Dissolution & Divorce > Property Distribution > Classification > Degrees, Licenses & Enhanced Earnings [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. They also acknowledge the injustice that occurs after a couple collectively works towards the attainment of an advanced educational degree or career goal, the For internal use only EFTA01407255 Page 20 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** 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 [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. 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 [HN8] 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 [HN9] 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 [Headnotes classified to Virgin Islands Digest] 1. Divorce § 11.50--Division of Property--Power of Court In an action for EFTA01407256 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 For internal use only EFTA01407257 Page 21 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** 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, equitable distribution does not necessarily mean "equal," only "equitable." 33 V.I.C. § 2305(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. § 2305(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 awarded possession, minus an award to the wife for her interest and contributions. 33 V.I.C. § 2305. 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 EFTA01407258 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 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. For internal use only EFTA01407259 Page 22 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** 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 standard of living in the future can be frustrated by the dissolution of a marriage. [**15] 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 EFTA01407260 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. 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. For internal use only EFTA01407261 Page 23 2014 V.I. LEXIS 45, *; 61 V.I. 13, 14. Contempt § 5.10--Noncompliance held in civil contempt for failure order the contemnor failed to comply with is clear and noncompliance is clear and convincing, and (3) the contemnor has a reasonable manner. COUNSEL: [*1] ANDREW L. CAPDEVILLE, ESQ., St. Thomas, USVI, Attorney for the Petitioner. [**16] JULIE GERMAN EVERT, ESQ., Law Offices Thomas, USVI, Attorney for the Respondent. JUDGES: WATLINGTON, Judge of the OPINION BY: DEBRA S. WATLINGTON OPINION MEMORANDUM OPINION (July 14, 2014) This matter came on S. Watlington, Judge of the Superior the parties' personal property A. Francis appeared with WrightFrancis appeared with The Court heard sworn testimony from Mr. Francis, Dr. Kellerhals, Esq. 1 Julie German Evert, Esq., entered her on behalf of Dr. Wright Francis on February 12, 2014. Vincent A. Fuller, Esq., was the attorney hearing. PRELIMINARY MATTERS Prior to commencing outstanding motions of both parties. The [*2] parties stipulated to the admission of Civil Complaint, ST-14-CV188, 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.2 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 Superior diligently attempted to comply in Law Offices of Andrew Capdeville, of Julie German Evert, St. Court of the Virgin Islands for a trial on April 8, 2014, and Court of the Virgin Islands the marital homestead. before the Honorable Debra for the determination of Petitioner/Husband Mr. Julito counsel Andrew L. Capdeville, Esq., and Respondent/Wife Dr. counsel Julie German Evert, Esq.1 the trial, Wright-Francis, Mrs. Joan Francis, and Erica the ** With Court Order--Generally A party may be to comply with a court order if (1) the unambiguous, (2) the proof of not notice of appearance in this matter of record at the previous Court addressed stipulations and EFTA01407262 ($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.3 For internal use only The parties also stipulated that the marital homestead, IB-29 Estate Solberg, St. EFTA01407263 Page 24 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** 2 Gerald Castor is the owner of Balbo Construction which performed construction work for the parties on the marital homestead located at IB-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 ($396,544.76). 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. [*3] 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 Attorney 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 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 EFTA01407264 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 29, 1997, Joan Francis [**18] executed a Quitclaim Deed transferring her interest in Parcel No. IB-29 Estate Solberg solely to Mr. Francis.5 A dwelling structure was completed in 1988 which Joan Francis moved into in 2000. At that point, Joan Francis began contributing to the mortgage and the utility bill [*5] 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. For internal use only EFTA01407265 Page 25 2014 V.I. LEXIS 45, *; 61 V.I. 13, 5 Mr. 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.6 The marital homestead has structure problems and has deteriorated throughout the parties' marriage.7 Notwithstanding the purported poor condition of the home, Mr. [*6] Francis would like to retain the marital homestead. 6 Mr. Francis filed 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 Mr. 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 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 [*7] wealth management business, * * EFTA01407266 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. 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, For internal use only EFTA01407267 Page 26 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** removing, concealing or otherwise harming or reducing the value of the property of one or both of the parties."8 On March 26, 2012, the Court held a final pretrial conference to set deadlines for trial. The Court also maintained the parties' visitation agreement.9 8 See, Paragraph (2) (b) of this Court's Order in [*8] this matter dated December 22, 2011. 9 Mr. 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, Brooklyn, 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 [*9] an accountant.10 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 EFTA01407268 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 articulated in Court. As a [*10] 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 For internal use only EFTA01407269 Page 27 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** 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 filed 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 [*11] 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 requested. The Court determined that the parties negotiated based on two (2) different interpretations of its terms. scheduled for trial. Subsequently, Mr. Francis moved the Court on permission to return to the marital homestead since his existing him and his daughter for their monthly visitation and Dr 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.12 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. Francis signed the promissory note despite both parties being listed on the document [*12] 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 payment was not made as each and accepted the agreement As a result, this matter was February 12, 2014 for apartment poorly accommodated . Wright-Francis had recently EFTA01407270 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, 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 [**22] net worth equal to Dr. Wright-Francis.13 Mr. Francis also expressed a willingness to rescind his request, if Dr. Wright-Francis relinquishes her interest in the marital homestead. 13 If the Court were to add both of the parties' purported net worth, divide them in half, and then subtract Mr. Francis' individual net worth it would amount to $496,000.00. For internal use only EFTA01407271 Page 28 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** Mr. Francis denied accusations of depleting any marital property. Instead, Mr. Francis contends that he withdrew [*13] 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 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.15 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 2011-2012,16 Seventeen Thousand Five [**23] Dollars and One Cent ($117,005.01).17 she found that Mr. Francis spent approximately One Hundred For the year 2012, Mr. Francis submitted his 1040 tax form, and again, Kellerhals found that Mr. EFTA01407272 Francis spent about One Hundred Seventy Nine Thousand Twenty One Dollars ($179,021.00).18 16 Mr. Francis submitted Fidelity IRA and 401K statements for December 2011- February 2012, April 2012-May 2012; Charles Schwab IRA statements for November 2012-December 2012; an AmEx credit card spending report for the year of 2011; and Marriott Credit Card [*15] 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. For internal use only EFTA01407273 Page 29 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** 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 property and real property, limited to the marital homestead as defined in Title 33 V.I.C. § 2305(d). Bradford v Cramer, 54 V.I. 669, 676 (V.I. 2011). Real property [*17] EFTA01407274 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 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. Marital Homestead [2] [HN2] Pursuant to Title 33 V.I.C. § 2305(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 For internal use only EFTA01407275 Page 30 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** '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. §§ 2305(a), (c) to hold that a "marital homestead' is any 'homestead' [*18] 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.19 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 Solberg, St. Thomas appears to satisfy the requirements outlined in Title 33 V.I.C. § 2305(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 EFTA01407276 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. Here, the Solberg property is apportioned into three (3) units. The parties resided in the larger unit with their daughters for approximately seven [*20] (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 asserted that Joan Francis contributed to her household [**26] 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. For internal use only EFTA01407277 Page 31 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** [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 twentyone (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 EFTA01407278 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). B. 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 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] [HN4] Although not specifically defined, marital property [*23] 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 For internal use only EFTA01407279 Page 32 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** (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). 1. Equitable Distribution of Retirement Accounts [6] [HN5] 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 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 couple has acquired and they both have relied upon their pension payments for [**28] security in their older years. [*24] Family Law and Practice, § 37.07[1] at 37-81 (1985). Fuentes v. Fuentes, 38 V.I. 29, 1997 WL 889532 (Terr. 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, EFTA01407280 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; [*25] 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 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 For internal use only EFTA01407281 Page 33 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** 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. Equitable Distribution 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.20 [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. Olar, 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 career goal," the expectation of a higher standard of living in the [*27] future by the dissolution of marriage. In re the marriage of Sally K. Olar, 747 P2d. 676, 678 (1987). 20 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 EFTA01407282 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 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(6)(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, For internal use only EFTA01407283 Page 34 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** 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. WrightFrancis' 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. [*29] Wright-Francis' medical degree. [11] [HN8] 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 manager. The parties testified that [**31] 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' EFTA01407284 medical degree is her separate property and is not subject to equitable distribution. 3. Equitable Distribution [*30] of Household Furniture and other Property Located at IB-29 Estate Solberg [12] [HN9] 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. 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. Determination on Waste of Marital Assets 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 For internal use only EFTA01407285 Page 35 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** of the property of one or both of the parties."21 In addition, the parties were authorized to engage in [*31] 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.22 21 See, Paragraph (2) (b) of Order dated December 23, 2011 22 id. 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 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.24 The Court also considers the fact that Mr. Francis was terminated from his employment with VINGN and used his investments [*32] to support his obligations and standard of living. 24 Petitioner's bank statements submitted at 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 proof of noncompliance is clear and convincing, and (3) the contemnor has EFTA01407286 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. For internal use only EFTA01407287 Page 36 2014 V.I. LEXIS 45, *; 61 V.I. 13, ** [**33] 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. For internal use only EFTA01407288