# Petition for Writ of Certiorari — Bothe v. Hansen (No. 08-1504)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2009

## Text

rer? Court, U.S.
me FILED

081504 JUN 1 - 2009

No.

QOESICS OF RHE Cy BRK

IN THE

Supreme Court of the United States

ANNEMARIE BOTHE, PETITIONER

PAMELA JEAN HANSEN

PETITION FOR A WRIT OF CERTIORAR!
TO THE SECOND DISTRICT COURT OF APPEAL
FOR THE STATE OF FLORIDA

PETITION FOR A WRIT OF CERTIORARI

DENNIS P. DERRICK CARLJ. ROBIE, IJ

Counsel of leecord
Winthrop Strect LOel YU Ore

Mssex MA 01929 2525 Sunnybrook Dr
(YTS) 768-6610 Sarasota, BL 34239

(94 1) 855-2828

?

QUESTIONS PRESENTED

1. Florida’s intermediate appellate courts decide
over 80% of the appeals they hear with per cwrtam orders
issued without opinions and the losing party has no right
to seek further review of these summary dispositions by
the “lorida Supreme Court. Does this procedure deny the
losing party due process or the equal protection of the
laws?

2. Is an appellant denied procedural due process
when Florida’s Second District Court of Appeal, a court of
last resort, refuses to include in the record and consider
evidence relevant to the her claim of error by the lower
court?

‘.
TABLE OF CONTENTS

Page
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OPINIONS BEL ri aie icceesnyexessssesorceeees ]
JURISDICTION .occccocsncactecie meet Sea oscar cases al 2
RELEVANT PROVISIONS Bert Mth cosiscccceserscseccescccrseecsoeseoesee: 3
STATEMENT cécccscccoscnseee eT eco vnceccecnonsee a
REASONS FOR GRANTING THE PETITION ....0.....0..:cccesseseeseeeees 13
CONCLUSION .sco-soschcaenee en... 28
APPENDIX

Marital Settlement Agreement far Simplified

Dissoleteors Of GE Cr TRI ce eile ietetctteccescesssovesesccceeses la
Final Judgment of Simplified Dissolution of

NM PAG xicssicscesiasas er cavecacecevisaeseceeee 7a
JE 1s ene en Oa 9a
Appellate Court Opinion .occccccccccceccscerseecssceaeees DT cc snaiies 19a
Corcuit Court Final Summary Judgment .....ccccccc cee eee fy

Appellate Court Rehearing Denial .....0.cccccccccccccscscesseseeeees 24a

Lui

TABLE OF AUTHORITIES

Page

CASES
AMTRAK V. MORGAN, 536 U.S. 101, 116(2002)..... ERE,
ARMSTRONG V. MANZO, 380 U.S. 545, 551- 552(1965).... Rides 18, 25
BODDIE V. CONNECTICUT, 401 U.S. 371, 374-375(1971) ou...
sistas anamcpuacueh tele aacecueizeecibiceouaalamieanaa tea detaaaa lone 17, 24, 25, 26
BOUNDS V. SMITH, 480 U.S. 817, 828(1977) ............0....csecceseeeee 26
CAREY V. PIPHUS. 435 ES Bos Ge Fo IE OP Pi ch sxsevesiacscnastssesousancs 2)
CHRISTOPHER V. HARBURY, 536 U.S. 408, 414-415 &

i, Teo ee BO URN So ee 26
CLEVELAND BOARD OF EDUCATION V.

LOUDERMILL, 470 U.S. 5382, 538 (1885)..................... 17, 18, 21
COLLINS V. HARKER HEIGHTS, 503 U.S. 115,

£2 G5. 3 Seen Eiri ee OL ST Hie lata Rec FEA Ce a oR eS ST
DANIELS V. WILLIAMS, 474 U.S. 327, 331(1986).................00.. 27
DENT V. WEST VIRGINIA, 129 U.S. 114, 12301889)... 27
EVITTS V. LUCEY, 469 U.S. 387, 393(1985)..........cscccccsssscossseeee 19
FIDELITY & DEPOSIT Co. V. ARENZ, 290 U.S. 66, 68

CUR ai iiva secsencicccsnccecsnccemdeacauan ree pee ee 17
FLORIDA STAR V. B.J.I 30.2D 286, 288 N.3(F

BINT iss svasaiedsovciclanuacdna eae ae ean eaerieaes ee 21
“ORD MOTOR Co. V. KIKIS, 401 S0.2p 1341. 1342(F LA

|b | 3 SS NUMA nea CeO ENP LS .etems adel Pat nee ae
GIBBES V. ZIMMERMAN, 290 U.S. 326, 332(1933)........0......... re
GOLDBERG V. KELLY, 397 U.S. 254, 262-263( 1970) .....17, 20, 24
GRANNIS V. ORDEAN, 234 U.S. 885, 394(1914) wo. ls
GREENE V. MCELROY, 360 U.S. 474, 496-497(1959).00 we. 17
GREGORY V. GREGORY, 289 So. 2D 468, 469(1974)..........00000. 19
GRIFFIN V. ILLINOIS, 391 U.S. 12, 18-14(1956)...................0.0 19
HAMDI V. RUMSFELD, 642 U .S. 507, 528-529(2004)............000. 1s
HELIS V. WARD, 308 U.S. 365, 369-370(1939) ooo eee 20
HILL V. HILL, 778 So. 2D 967, 96BCFLA 2001) oo... eee 19
ICC v. LOUISVILLE & N. R. Co., 227 U.S. 88,93

Pe Ee ovine inisnisecss esuarenta ee 29

INTERSTATE CIRCUIT, INC. V. UNITED STATES, 304
APO Sy ac: . | en nere nie AES een 19

Ww

JENKINS V. FLORIDA, 385 SO.2D 1356 (FLA 1980).........3, 21, 23
JOINT ANTI-FASCIST REFUGEE COMMITTEE V.

MCGRATH, 341 U.S. 128,168 (1951)....0.000.......... cesses thas 17
LOGAN V. ZIMMERMAN BRUSH Co., 455 U.S. 422,

I iar to ol scenes eancaeanceoa naib iceotnieacn 25, 26
MATHEWS V. ELDRIDGE, 424 U.S. 319, 334-335(1976) ........... 18
MISSOURI V. JENKINS, 515 U.S. 70, 121(1995)... eee a

ar

MORRISSEY V. BREWER, 408 U.S. 471, 481(1972)............. 17, 18
MURRAY'S LESSEE V. HOBOKEN LAND &

IMPROVEMENT Co., 18 HOW. 272, 277 (1856) ...........ceceeeees 28
ORTWEIN V. SCHWAB, 410 U.S. 656, 660(1978) 0. eee 19
PALMORE V. SIDOT!, 466 U.S. 429, 481(1984) ow, 3, 18,23
RAILROAD COMMISSION V. MAXCY, 281 U.S. 8&2,

ORE Ae a eee NE ROR te prea dl nee Fy Ten RE aS 24
REAVES V. STATE, 485 S0.2D 829, 830 & N.3(FLA

FRE re eet fo Ma adn ESSA Paced Re CO EEO 22
REPUBLICAN PARTY: V. WHITE, 536 U.S. 765, 790

ys ENRON OPO ea se a ETAL ARC, CES e ISRO i ee en ee 24
SAUNDERS V. SHAW, 244 U.S. 317, 319-320(1917) oo... 20
SCHOOL BD. V. DISTRICT COURT-OF APPEAL, 467

Pe cei ss aso wiksnbandisnecnes 22
SCOTT V. MCNEAL, 154 US. 34, 45-46( 1894) ..00.0................00... 26

SHELLEY V. KRAEMER, 834 U.S.1,16-17(1948)......0.000000..0... 18
WIGGINS PERRY Co. V.0 & M RAILWAY, 142 US.

re ey as eke tac nadinbdachetainisvs 19
WILLIAMS V. FLORIDA, 399 U.S. 78, 80 N. 5(1970) .............3, 23
WILLNER V. COMMITTEES ON CHARACTER AND

FITNESS, 873 U.S. 96, 108-104( 1968) ..............scocsecessessereeseses 20
WOLFF V. MCDONNELL, 418 U.S. 539, 579(1974) 000. 26

RELEVANT PROVISIONS

ee i oe at eS a 3, 4, 13
ey MN ee ea ae Aer oe ee ae 5. Fi

RPMI SAARI ING Bs ics dasa cats inshionivanves soc plencactanidpccniooan 3

l
OPINIONS BELOW

The marriage settlement agreement between
respondent and the decedent in the divorce case of
Andreas Daaid Bothe v. Pamela Jean Bothe (Docket
No. 2006-DR-1548 SC), dated February 21, 2006, is set
forth in the Appendix hereto(App. 1-6).

The final judgment of simplified dissolution of
marriage in the divorce case of Andreas David Bothe v.
Pamela Jean Bothe (Docket No. 2006-DR-1548 SC),
dated February March 15, 2006, is set forth in the
Appendix hereto(App. 7-8).

The decedent’s [RA Application and Adoption
Agreement, signed and dated October 5, 1998, is set
forth in the Appendix hereto(App. 9-12).

A letter dated September 2002 from Donaldson,
Lufkin & Jenrette (Harrisdirect) to the decedent
Andreas David Bothe, is set forth in the Appendix
hereto(App. 13-14).

The unwitnessed last will and testament of the
decedent Andreas David Bothe, dated March 21, 2006,
is set forth in the Appendix hereto(App. 15-16).

Letter of the decedent Andreas David Bothe,
dated Maren 21, 2006, is set forth in the Appendix
hereto(App. 17-18).

The unpublished per curiam Order of the
Fjorida District Court of Appeal for the Second District
in Annemanre Bothe v. Pamela Jean Hansen(Docket
No. 2D0&-557), filed on November 7, 2008, and reported

2

at 996 So.2d 860(Fla.2d DCA 2008), affirming the final
summary judgment in respondent’s favor and against
petitioner by the Circuit Court for Sarasota County, is
set forth in the Appendix hereto(App. 19).

The unpublished and unreported Order of the
Florida District Court of Appeal for the Second District
in Annemarie Bothe v. Pamela Jean Hansen(Docket
No. 2D08-557), filed on May 8, 2008, denying
petitioner’s motion to supplement the record , is set
forth in the Appendix hereto(App. 20).

The unpublished and unreported Final Summary
Judgment of the Circuit Court for Sarasota County in
Pamela Jean. Hansen v. E*Trade Financial Corp. and
Annemarie RBothe(Docket No. 2006 CA 4875 SC),
decided February 1, 2008, determining that respondent
is entitled to all the proceeds of the decedent’s IRA
account and that petitioner is entitled to nothing, is set
forth in the Appendix hereto(App. 21-23).

The unpublished and unreported Order of the
Florida District Court of Appeal for the Second District
in Annemarie Bothe v. Pamela Jean Hansen(Docket
No. 2108-557), filed on December 31, 2008, denying
petitioner’s motion for rehearing, for rehearing en banc
or for a written opinion, is set forth in the Appendix
hereto(App. 24).

JURISDICTION

The decision of the Florida District Court of
Appeal for the Second District was decided and filed on
November 7, 2008(App. 1). Because the Florida District
Court of Appeal for the Second District elected not to

)
o

write an opinion, the Supreme Court of Florida was
without jurisdiction to review this case and the Florida
District Court of Appeal for the Second District is
therefore the highest State court in which a decision
could be had. Fla. Const. Art. V, § 3(b)(3). See Palmore
v. Sidoti, 466 U.S. 429, 43111984); Williams v. Florida,
399 U.S. 78, 80 n. 5(1970); Jenkins v. Florida, 385 So.2d
1356, 1359-1360(1" la.1980).

On December 31, 2008, the Florida District
Court of Appeal for the Second District denied
petitioner’s motion for rehearing, for rehearing en banc

Oo

or for a written opinion(App._).

Qn March 28, 2009, this Court, Thomas, J.,
granted petitioner’s application for an extension of
time to file their petition until May 30, 2009(Docket No.
O8A-835).

This petition for writ of certiorari is filed within
the time allowed by Justice Thomas’ order allowing
petitioners to file their petition by May 30, 2009.
Supreme Court Rule 30.1.

The jurisdiction of this Court is’ invoked
pursuant to the provisions of 28 U.S.C. § 1257(a).

RELEVANT PROVISIONS INVOLVED
l'nited States Constitution, Article IV. § 2:
The Citizens of each State shall be entitled to all

Privileges and Immunities of Citizens in the
several States.

4

United States Conslitution, Article VI, Paragraph 2:

This Constitution, and the laws of the United
States which shall be made in pursuance
thereof...shall be the supreme Law of the Land;
and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.

United States Constitution. Amendment 1:

Congress shall make no law...abridging...the
right of the people...to petition the government
for the redress of grievances.

United States Constitution, Amendment X1V, § 1:

..No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property,
without due process of law; nor deny to any
person within its jurisdiction the equal
protection of the laws.

28 U.S.C. § 1257 (a):

Final judgments or decrees rendered by the
highest court of a State in which a decision could
be had, may be reviewed by the Supreme Court
by writ of certiorari where the validity of a
treaty or statute of the United States is drawn in
question or where the validity of a statute of any

State is drawn in question on the ground of its
being repugnant to the Constitution, treaties, or

~

J
laws of the United States, or where any title,
right, privilege, or immunity is specially set up
or claimed under the Constitution or the treaties
or statutes of, or any commission held or
authority exercised under, the United States.

Fla. Const. Art. V, § 8(b)(3):

The supreme court of Florida may review any
decision of a district court of appeal that
expressly declares valid a state statute, or that
expressly construes a provision of the state or
federal constitution, or that expressly affects a
class of constitutional or state officers, or that
expressly and directly conflicts with a decision
of another district court of appeal or of the
supreme court on the same question of law.

Fla. App. Rule 9.200(f):

Correcting and Supplementing Record.

(1) [If there is an error or omission in the record,
the parties by stipulation, the lower tribunal
before the record is transmitted, or the court
may correct the record.

(2) If the court finds the record is incomplete, it
shall direct a party to supply the omitted parts of
the record.

No proceediny shall be delermined, because of
an incomplete record, until an opportunity to

supplement the record has been given.

6
STATEMENT

On October 5, 1998, while he was married to the
respondent Pamela Jena Hansen (“the respondent”),
the decedent Andreas David Bothe (“the decedent”) of
Nokomis, Florida, opened an IRA plan with Donaldson,
Lufkin & Jenrette Securities Corporation, called a
DLJdirect account (App. 9-12). He designated his wife,
the respondent Pamela Jean Hansen (“the respondent”)
who was then named Pamela Jean Rothe, as the
primary beneliciary of the plan to receive 100% of its
benefits; and he named his sister, the petitioner
Annemarie Bothe (“petitioner”) as the plan’s only
contingent beneficiary(App. 9-10).

In September of 2002, Donaldson, Lufkin &
Jenrette Securities Corporation wrote decedent to tell
him that on November 1, 2002, it would no longer be
the custodian of his IRA account and that Harris
Investor Services LLC (“Harrisdirect”) would take
over as custodian at that time(App. 13-14). In order to
complete this change, the Internal Revenue Service
required decedent to enter into a formal agreement
adopting Harrisd?rect as the plan’s new custodian(App.
13). As the letter explained, if he did not return signed
documents agreeing to the change, DLJdzrect could
close the account and distribute the assets, subjecting
him to income and penalty taxes arising from the
distribution; or he could roll the assets of the plan into
an entirely new IRA within sixty (60) days(App. 15-14).

There is nothing in this record to show that the
decedent ever complied with this request by
Donaldson, Lufkin & Jenrette Securities Corporation to
change custodial responsibility for his TRA plan from

-

i

DLJdirect to Harrisdirect. Harrisdirect eventually
merged with E*Trade in 2006 and there is nothing in
the record which reflects the terms and conditions of
these mergers from DLJdirect to Harrisdirect in 2002
and then from Harrisdirect to E*Trade in 2006 and
whether the terms of the decedent's original 1998 IRA
contract ever survived these two mergers. Nor was
there any evidence that the decedent received any
notice of E*Trade’s requirements for changing
beneficiaries of his TRA plan at any time.

In anticipation of divorce proceedings between
him and respondent, the decedent moved out of the
marital home in August of 2005. After divorce
proceedings ensued in 2006, he and respondent entered
into a marital settlement agreement (“the MSA”) dated
February 21, 2006, and signed by both parties(App. 1-
6). The MSA gave each party equal shares of the
marital estate(App. 3-5). In order to equalize the
proportions, respondent was awarded certain
certificates of deposit while the decedent was given
$1,089,546.00 of his IRA as his own(App. 2-4).

Furthermore, it was provided in the MSA —
signed and sworn by respondent Wife as well as by the
decedent---that she “shall have no further rights or
responsibilities regarding these assets” of the decedent
which were awarded him under the MSA, thereby
Walving any expectancy on her part to receive the IRA
benefits or anything else belonging to the decedent in
the wake of the MSA and their divorce (App. 3;6).The
MSA was incorporated by reference within a final
judgment of the dissolution of the parties’ marriage
which entered in the Circuit Court for Sarasota County

—

on March 15, 2006( App. 7-8).

8

On March 21, 2006, the decedent executed an
unwitnessed holographic will which, among other
bequests, gave all of his IRA benefits to one Margaret
Lindsay (whom he intended to marry) and to petitioner
he gifted the proeceds from his stock account and “all
other items owned by [him] individually’(App. 15-16).
On March 22, 2006, suffering from chronic depression,
the decedent took his own life(App. 17-18;21). In a final
letter to Ms. Lindsay, he again indicated that he
wanted her to receive the money from his retirement
plan(App. 17-18).

Upon the parties’ divorce, respondent changed
her name from Pamela Jean Bothe to Pamela Jean
Hansen(App. 8). Following the decedent’s death one
week later, she was appotnted the decedent's personal
representative and demanded payment from E*Trade
of the proceeds of the decedent’s IRA plan
($1,089,546.00) claiming that she was entitled to same as
the primary beneficiary under the 1998 contract which
the decedent entered into when he set up the IRA with
Donaldson, Lufkin & Jenrette Securities Corporation,
the DLJdirect account, and named her primary
beneficiary thereunder(App. 21-22).

E*Trade refused to pay respondent the proceeds
of decedent’s IRA. In addition, petitioner contended
that the MSA executed by the decedent and
respondent as part of their divorce controlled the
disposition of the decedent’s IRA proceeds and under
its plain terms, respondent had no claim to the IRA,
had already received everything she was entitled to
from the decedent as part of their divorce and, in any
event, she had expressly waived any expectancy on her
part to receive these IRA benefits or anything else

)

belonging to the decedent in the wake of the MSA and
the divorcee.

Respondent then brought this civil action in the
Circuit Court for Sarasota County against petitioner
and E*Trade seeking declaratory relief that as the
named primary beneficiary of the decedent’s IRA, she
was entitled to its proceeds(App. 21-22). Petitioner
counterclaimed by seeking a declaration that the MSA
controlled the disposition of the decedent’s IRA
proceeds and under its plain terms respondent had no
claim to the IRA, had already received everything she
was entitled to from the decedent as part of their
divorce and, in any event, she had expressly waived
any expectancy on her part to receive the IRA benefits
or anything else belonging to the decedent in the
aftermath of their divorce(App. 21-22). Petitioner
sought an order awarding the [RA proceeds either to
her or to Margaret Lindsay whom the decedent
intended to marry and to whom he attempted to give
his TRA proceeds just before his death.

Respondent’s) motion for summary judgment
and petitioner’s opposition thereto was argued before
the Circuit Judge on January 29, 2008(App. 21-22). At
the hearing, respondent adduced »o evidence to show
the terms of the two mergers of decedent’s [RA plan
from DLJdirect to Harrisdirect in 2002 and then from
Harrisdirect to E*Trade in 2006 and whether the terms
of the decedent’s original 1998 TRA centract survived
these two mergers. Nor did respondent show that the
decedent received any notice of E*Trade’s
requirements for changing beneficiaries of his IRA plan
at any time before signing the MSA in February of
2006, or obtaining their divorce on Mareh 15, 2006. All

10

that was shown was that in anticipation of divorce
proceedings between him and respondent, the decedent
in August of 2005 moved out of the marital home, the
address to which E*Trade would have sent any of its
requirements for changing the _ beneficiaries of
decedent’s IRA plan.

Petitioner argued that these facts----and
respondent’s notable absence of proof on these crucial
issues----showed that genuine triable fact issues existed
about whether decedent’s IRA plan together with its
beneficiary designation survived the 2002 and 2006
mergers intact; whether decedent’s failure to comply
with Harrisdzrect letter of 2002 requesting his express
agreement to the merger with Harrisdirect revoked his
IRA plan and its beneficiary designation or caused it to
lapse or to be revoked; whether the decedent intended
that respondent be the primary beneficiary of his IRA
plan after their execution of the MSA and their
ensuing divorce; and whether the express terms of the
MSA giving decedent unfettered ownership over the
proceeds of his IRA and containing respondent’s
express waiver of any claim to these proceeds overrode
the obsolete beneficiary designation of the [RA itself.

Immediately after oral argument on her motion
for summary judgment, respondent introduced into the
record a reference as a trial exhibit to the Harrisdzrect
letter of 2002 to decedent requesting his express assent
to a “new adoption agreement;” but she failed to
produce any evidence that decedent ever executed the
paperwork agreeing to this new merger with
Harrisdirect such as by signing a new adoption
agreement.

11

On February 1, 2008, the Circuit Judge issued
his decision granting respondent’s motion for summary
judgment, ruling that she was “entitled to all proceeds
of the decedent’s E*Trade IRA account...;” he denied
petitioner any relief on her counterclaim(App. 21-23).
In his decision, the trial judge erroneously
characterized petitioner as decedent’s “personal
representative” which she was not(App. 23). Moreover,
without any basis in fact and contrary to the plain
terms of the MSA itself, it found that the MSA
identified the decedent’s IRA plan as an account with
E*Trade and “|t]herefore, it is clear that the decedent
was aware that his IRA accoun’ was held by E*Trade
at the time the decedent and [respondent] were
divorced”’{App. 21-22). The MSA made no reference to
any such E*Trade account and there was no evidence
that decedent knew that his 1998 adoption agreement
was accepted by E*Trade or that he knew of E*Trade’s
regulations for IRAs at the time of the divorce.

In addition, the Circuit Judge built upon this
erroneous finding of fact about the decedent’s
knowledge of E*Trade as the custodian of his IRA plan
by ruling that since the decedent failed to comply with
E*Trade’s strict requirements for — changing
beneficiaries during his lifetime. he must have intended
for respondent to remain the primary beneficiary under
the plan and she was therefore entitled to its
proceeds(App. 22).

On March 27, 2008, E*Trade was dismissed as a
party by stipulation. Petitioner then appealed the
Circuit Judge’s ruling to the Dist ict Court of Appeal
for the Second District (App. 19). Incident thereto,
petitioner moved in the appellate court to supplement

12

the record to include the September 2002 letter from
Harrisdirect to the decedent(App. 20). Petitioner
claimed that the appellate court needed to consider
whether this document, introduced into the record by
respondent after oral argument on her summary
judgment motion, raised genuine issues of material fact
for trial, i.e., whether decedent’s failure to comply with
Harrisdirect letter of 2002 requesting his express
agreement to the merger with Harrisd?rect revoked his
IRA plan and its beneficiary designation altogether or
caused it to lapse or to become otherwise adeemed; and
whether combined with the MSA and the decedent’s
other written expressions of intent about his IRA
proceeds before he died, this letter undermines any
argument that the decedent intended for respondent to
have any of his LRA proceeds(App. 20).

On May 8, 2008, the District Court of Appeal for
the Second District denied petitioner’s motion to
supplement the record on appeal(App. 20). On
November 7, 2008, the same court issued a one-page per
curiam affirmance of the judgment below without
issuing any opinion explaining its rationale(App. 19).

Petitioner moved for rehearing, rehearing en
banc and requested a written opinion(App. 24). She
argued inter alia that the appellate court should have
allowed her to supplement the record on appeal with
the September 2002 letter from Harrisdirect to the
decedent because respondent never proved that
decedent complied with any new IRA requirements in
2002 after the first merger or in 2006, after the second

merger. As she contended, “no ‘new adoption
agreement’ was produced by [respondent] establishing
that her claim to the LRA was legally enforceable in the

13
chain of events from 1998 to [the] date of decedent’s
death;...[{and}] “[w]ithout a Harrisdirect ‘new adoption
agreement’ in 2002, there is no evidence linking the
enforceability of the DLJdirect document on its face
against E*Trade as custodian.”

On December 31, 2008, the Florida District
Court of Appeal for the Second District denied
petitioner’s motion for rehearing, for rehearing en bane
or for a written opinion(App. 24). Because the Florida
District Court of Appeal for the Second District elected
not to write an opinion, the Supreme Court of Florida
was without jurisdiction to review this case (Fla. Const.
Art. V, § 3(b)(3)), leaving the decision of the Florida
District Court of Appeal for the Second District as one
made by the highest State court in which a decision
could be had. See 28 U.S.C. § 1257(a).

On March 23, 2009, this Court, Thomas, J.,
granted petilioner’s application for an extension of
time to file their petition until May 30, 2009( Docket No.
OSA-835),

REASONS FOR GRANTING THE PETITION

l. Florida’s Second District Court of Appeal Denied
Petitioner Procedural Due Process When As a Court of
Last Resort It Refused to Include in the Appellate
Record and Consider Evidence Relevant to Her Claim
of Error

The thrust of petitioner’s argument in the
Circuit Court for Sarasota County betore Judge
Bennett was that respondent's proot in support of

summary judgment was insufficient as a matter of law

14

to establish her right to the decedent’s IRA proceeds.
At the very least and construed in the light most
favorable to petitioner, the opposing party,
respondent’s meager proof about her entitlement to
these monies showed that triable fact issues existed
whether decedent’s IRA plan together with its
beneficiary designation survived the merger of
DLJdirect with Harrisdirect in 2002 and Harrisdirect’s
later merger with E*Trade in 2006. The record also
raised the crucial fact question whether the decedent
had effectively maintained his IRA plan and its
beneficiary designation in consonance with the
changing requirements which these new custodians
(and the IRS) would have imposed upon him in order to
avoid a distribution.

The other material fact questions left unresolved
by respondent’s proof below were whether the
decedent intended that respondent be the primary
beneficiary of his IRA plan after their execution of the
MSA and their divorce; and whether the express terms
of the MSA giving decedent unfettered ownership over
the proceeds of his IRA and containing respondent’s
express waiver of any claim to these proceeds overrode
the obsolete beneficiary designation of the IRA itself.

When respondent immediately after oral
argument on the summary judgment motion in circuit
court introduced into the record a reference as a trial
exhibit to the Harrisdirect letter of September 2002 to
decedent requesting his express assent to a “new
adoption agreement without any proof that the
decedent kad actually complied urth its requirements,

another genuine issue of material fact emerged for

+

resolution, 1.e., whether the decedent’s failure to

15

comply with Harrisdirect letter of 2002 requesting his
express assent to the merger with Harrisdirect revoked
his LRA plan and its beneficiary designation or caused
it to lapse or to be revoked. In this regard as well,
respondent failed to adduce any proof in the circuit
court that decedent had ever executed the necessary
paperwork for agreeing to this new merger with
Harrisd?rect.

In the wake of the circuit court’s decision
yranting summary judgment to the respondent, a
decision founded on its fandamental misconception that
the decedent “was aware that his FRA account was held
by Ii*Trade at the time the decedent and [respondent]
were divorced’(App. 21-22), when there was x0
evidence to show that decedent knew that his IRA plan
had been accepted by E*T'rade or that he knew of
E*Trade’s regulations for [RAs at the time of the
divorce, petitioner sought to supplement the record on
appeal to include Harrisdirect’s letter of September
2002 (App.13-14;20).

This letter of September 2002 raised genuine
issues of material fact whether the decedent had
assented to the successive mergers of his JRA plan to
the one administered by E*Trade, so that it and its
beneficiary designation survived these mergers;
Whether the decedent’s failure to comply with
Harrisdzrect letter of 2002 requesting his written

to the merger with Harrisdrrect revoked his
IRA plan and its beneficiary designation altogether or
caused it to lapse; and whether combined with the MSA
and the decedent’s other written expressions of intent
about his TRA proceeds before he died, this letter
undermines respondent’s argument that the decedent

assent

16
intended for her to receive his IRA proceeds(App. 20).

After the District Court of Appeal for the
Second District denied petitioner’s motion to
supplement the record on appeal and then issued its
one-page per curiam affirmance of the judgment
without issuing any opinion’ explaining its
rationale(App. 19;20), petitioner moved for rehearing,
rehearing en banc and _ requested a_ written
opinion(App. 24). She argued once again that the
appellate court should have allowed her to supplement
the record on appeal with the September 2002 letter
from Harrisdirect to the decedent because respondent
never proved that decedent complied with any new
IRA requirements in 2002 after the first merger or in
2006, after the second merger. The District Court of
Appeal denied petitioner’s motion without opinion(App.
24).

This refusal by the District Court of Appeal for
the Second District, a court of last resort, to include in
the appellate record and accommodate in its decision
this letter by WHarrisdirect to the decedent of
September 2002, a letter respondent herself introduced
into the record below, denied petitioner procedural due
process, It unfairly constricted crucial evidence helpful
to petitioner's cause and irremediably prejudiced her in
the marshaling of further evidence and in obtaining a
fair, meaningful hearing on appeal. Without this
evidence in the record, respondent was never put to the
burden of showing how the decedent had actually
assented to DLJdirect’s merger with Harrisd?rect in
2002 and then with Harrisd?rect’s merger with E*Trade
in 2006 so as to entitle her to the IRA’s proceeds as its
primary beneficiary. This letter was critical to

17
petitioner’s argument that respondent had proved xo
chain of events entitling her to the decedent’s IRA
proceeds and the refusal of the appellate court to
supplement the record to include this document denied
petitioner the fair process due her on this appeal.

Under the fourteenth amendment, petitioner is
entitled to procedural due process if the
property/liberty interest at stake is deemed to be of
such magnitude that its loss can fairly be characterized
as important; and it depends upon the extent to which
the individual will be “condemned to suffer grievous
loss.” Morrissey v. Brewer, 408 U.S. 471, 481(1972)
quoting Joint Anti-Fascist Refugee Committee v
McGrath, 341 U.S. 123,168 (1951)(Frankfurter, J.,
eter Goldberg v. Kelly, 397 U.S. 254, 262-

63(1970). Petitioner has a cognizable property right or
et interest in her right to seek both in the circuit
court and on appeal declaratory relief consistent with
her counterclaim. gy 397 U.S. at 267-271. Greene

McElroy, 360 U.S . 496-497(1959). See Cleveland
Board of E wotreesaly v. Loudermill, 470 U.S. 5382,
538;541(1885) (“The point is straightforward: the Due
Process Clause provides that certain substantive
rights—life, liberty, and property—cannot be deprived
except pursuant to constitutionally adequate
beacon Gibbes v. Zimmerman, 290 U.S. 326,
332(1 . Fidelity & Deposit Co. v. Arenz, 290 U.S. 66,
6% pf See also Boddie v. Connecticut, 401 U.S. Stk;
374-375(1971).

Nor can it be doubted that the actions of the
Klorida courts including its judicial officers Prey In

their official capacities is state action governed by the
fourteenth amendment. Palmore v. Sidoti, 466 US 129,

18

434(1984). Shelley ». Kraemer, 884 U.S.1,16-17(1948).

Once the Due Process Clause applies to the
proceedings below, “the question remains what process
is due.” Loudermill, 470 U.S. at 541 quoting Morrissey
v. Brewer, 408 U.S. at 481. This Court’s decision in
Mathews v. Kldridge, 424 U.S. 319, 334-335(1976)
provides that the process due is determined by
weighing “the private interest that will be affected by
the official action” against the government's asserted
interest,“including the function involved” and the
burdens the government would face in providing
greater safeguards. Jd. at 335. The Mathews calculus
contemplates a balancing of these concerns through an
analysis of “the risk of an erroneous deprivation” of the
private interest if the process were recluced and the
“probable value, if any, of additional or substitute
procedural safeguards.” Jd. See Hamdi v. Rumsfeld,
542 U.S. 507, 528-529(2004).

Employing Mathews’ calculus in order to balance
petitioner’s legitimate private interest in achieving a
fair result upon appeal consistent with the relevant
evidence which should have been considered incident to
respondent’s summary judgment motion ayainst the
respondent’s corresponding need for a fair adjudication,
petitioner submits that the process due her consists at a
minimum of a reasonable opportunity to be heard on
appeal, to marshal the relevant evidence in support of
her cause and to have a fair hearing on the proof
adduced. Armstrong v. Manzo, 380 U.S. 545, 551-
952(1965).Grannis v. Ordean, 254 U.S. 385, 394(1914).
The refusal by the District Court of Appeal to
supplement the record on appeal with the Harrisdireet
letter of September 2002 pursuant to its own Rule

19
9.200(f) for doing so was a denial of the process due
petitioner in these circumstances.

After all, once a State provides a procedural
framework for disposing of appeals within its system,
those appellate remedies must comport with the
demands of the due process and equal protection
clauses of the federal constitution. Mvilts v. Lacey, 469
U.S. 387, 393(1985). Griffin v. Illinois, 851 U.S. 12, 15-
14(1956). See Ortwein v. Schwab, 410 U.S. 656,
66011973). Even Florida’s own law supports the
proposition that when documents omitted from the
record on appeal are necessary for inclusion in the
appellate record so that “the ends of justice are best
served,” the appellant’s constitutional right to effective
appellate review are “best preserved” when those
documents are included in the appellate record. Hill v.
Hill, 778 So. 2d 967, 968(F la. 2001).Gregory v. Gregory,
289 So, 2d 468, 469(1974), See Fla. App. Rule 9.200(f).

This Court’s deeisions have established — that
where evidence referred to in the proceedings below
and necessary to a fair determination of the cause of
action on appeal is not included in the record on appeal,
or where its non-production has not been otherwise
accounted for, its omission in this Court warrants an
order remanding the matter to the lower court tor
reconsideration based upon the omitted evidence. See,
wl ee ford Motor Co. ?). National Labor feelations
Board, 305 U.S. 864, 373(1939); Interstate Circuit, Inc
uv. United States, 304 U.S. 55, 56-57(1938), Wiggins
Perry Co. v. O & M Railway, 142 U.S. 896, 413
114(1892): Levy v. Arredondo. 37012 Pet.) U.S. 218, 219

(1838).

2U

Moreover, the failure of a State appellate court
to :upplement the record before it when relevant
evidence has been omitted is a matter of due process
and a fair hearing under the fourteenth amendment. As
this Court observed speaking through Justice Holmes
in Saunders v. Shaw, 244 U.S. 317, 319-820(1917),
viving a litigant “a chance Lo put his evidence in” even
at the appellate level] in not a mere concession to
technicality:

[When the act complained of is the act of the
{State] Supreme Court, done unexpectedly at
the end of the proceeding, when the plaintiff in
error no longer had any right to add to the
record, it would leave a serious gap in the
remedy for infraction of constitutional rights if
the party aggrieved in such a way could not
come here.

id. Having by motion sought supplementation of the
record both before and after the decision by the District
Court of Appeal, contrast Helis v. Ward, 308 U.S. 365,
369-370(1989), there was no “more [petitioner] could
have done” to assert her due process rights to have this
erucial evidence considered by the court of last resort in

Florida Sarnade rs, 244 U.S. at 320.

In the final analysis, due process requires a
meaningful hearing where the participants are fully

armed with the relevant facts so that the decisionmaker
is fully informed. Goldberg v. Kelly, 897 U.S. at 269-270
citing /CC v. Lowsville & N. R. Co., 227 U.S. 88,93
94(1913) and Willner v. Committee on Character and
Fitness, 373 U.S. 96, 103-104(1963). The right to this

fair leaAring does not lepend ona demonstration ot

21
certain success, only that it take place. Loudermall, 470
US. at 544 citing Carey v. Piphus, 435 U.S. 247,
266(1978). The District Court of Appeal’s refusal to
supplement the record prevented a fair hearing from
taking place and denied petitioner the process due her
under the fourteenth amendment.

2. The District Courts of Appeals’ Use of Per Curiam
Decisions Without Opinion Denies Petitioner Due
Process and Equal Protection of the Laws Because It
Fails to Inform Petitioner of the Reasons for the
Disposition of Her Appeal And Prevents Review by the
Florida Supreme Court.

Under Fla. Const. Art. V, § 3(b)(8), the Florida
Supreme Court in its discretion may review any
decision of a district court of appeal that expressly
declares valid a state statute, or that expressly
construes a provision of the state or federal
constitution, or that expressly affects a class of
constitutional or state officers, or that expressly and
directly conflicts with a decision of another district
court of appeal or of the supreme court on the same
question of law. The term “expressly” is part of the
constitutional language, see Jenkins v. State, 385 So.2d
1356, 1357-1359(Fla. 1980), and for the Florida
Supreme Court to exercise its discretion to grant
review of a decision of any of the district courts of
appeal, the decision must fit within one of these four
constitutional categories and that fact must appear

“expressly” on the face of a written opinion issued by

the district court of appeal. /d. See also Florida Star ».

BIE. 530 So.2d 286, 288 n.3(k la. 1988).

99

No particular form of written opinion is
required; it need not specifically refer to any of the
constitutional criteria as long as it can be determined
from the opinion that one or more of the criteria is
satisfied. Ford Motor Co. wv. Kikis, 401 So.2d 1341,
1342(Fla. 1981). Moreover, for the purposes of
determining its jurisdiction in this regard, the Florida
Supreme Court only considers opinions joined in by a
majority of the panel of the district court of appeal; it
does not consider a concurring or dissenting opinion
standing alone in order to anchor its jurisdiction.
Reaves v. State, 485 So.2d 829, 830 & n.3(F la. 1986).

Under the supreme court’s internal operating
procedures, when notice of a _ party’ seeking
discretionary review is filed, the clerk’s office first
determines whether a district court of appeal has
written an opinion in the case and, if there is no opinion,
the case is automatically dismissed. Although the
absence of a written opinion will preclude review by the
Fiorida Supreme Court in almost every case (with the
exception of some requests for extraordinary writs),
parties before the district courts of appeals are nol
entitled to demand written opinions which would
qualify them for review by the Florida Supreme Court
School Bd. v. District Court of Appeal, 467 So.2d 985,
YS86(F'la. 1986).

hus there is no pathway Lo the Supreme Court
for a litigant who has requested but failed to obtain an
opinion discussing a point on which the litigant desires
supreme court review. See Cope, Gerald B., Jr.,

lhscret COL HY Re em Of the Decisions ays Lite rmned cule

Annellate Courts: A Comparison of Florida's Susten
It

With 1 hose f t thi ()thag { State sand bhig Peds ral Nysten

23

45 Fla. L. Rev. 21(1993), passim. In 2008, of the 25,419
cases on appeal by notice or petition in the five district
courts of appeal in Florida, 10,520 were decided by per
curiam decisions of a panel affirming the lower court
without opinion. Another 9,682 were disposed of by an
order of a clerk or a judge without opinion, meaning
that the case did not deserve appellate review. Only
4,652 were decided by a written opinion which
reference some authority for its result. Thus Florida’s
intermediate appellate courts decide over 80% of the
appeals they hear with per curiam orders issued
without opinions and the losing party has no right to
seek further review of these summary dispositions by
the Florida Supreme Court

Because the Florida District Court of Appeal for
the Second District elected not to write an opinion on
this appeal by petitioner, the Supreme Court of Florida
was without jurisdiction to review this case and the
Florida District Court of Appeal for the Second District
was therefore the highest State court in which a
decision could be had. Fla. Const. Art. V, § 3(b)(3). See
Palmore v. Sidoti, 466 U.S. 429, 431(1984);Willzams v.
Florida, 399 U.S. 78, 80 n. 5(1970), Jenkins v. Florida,
385 So.2d 1356, 1359-1360(F la.1980).

Given the finality of the district court of appeals’
per curiam decision affirming the circuit court without
a written opinion explaining its rationale and the fact
that petitioner is now denied the right to have the
propriety of this summary affirmance reviewed by the
Florida Supreme Court, petitioner submits that this
systemic official action by the State of Florida.
expressed through its constitutional scheme defining
the jurisdiction of the Florida Supreme Court, denies

24

her the constitutional right to effective appellate
review, denies her fair access to the courts, denies her
equal protection of the laws and denies her substantive
due process. This Court should therefore grant the
petition and declare that the Florida courts’ use of per
curiam decisions without written opinion denies the
affected appellants due process of law and the equal
protection of the laws.

In the first place, the abbreviated procedure for
affirming decisions of the trial court with per curiam
decisions absent any explanation or rationale for the
benefit of the parties does not comport with due
process because it is incompatible with the concept of a
fair hearing. The articulation of reasons for a decision
by an appellate court is crucial to the parties affected
because its rationality legitimizes the process,
justifying the result by reference to prior authority and
fostering predictability and normalcy in outcomes.
Moreover, reasoned results—anchored by reference to
precedent----bolsters the public’s confidence in the
judiciary and infuses society with a code of behavior
founded on rules which allow disputes to be settled in
an orderly, predictable manner. See Boddie v.
Connecticut, 401 U.S. 371, 374-375(1971). See also
Republican Party v. White, 586 U.S. 765, 790
(2002)(O’Connor, J., concurring).

A rationally explained result will identify the
factual predicates for the decisionmaking process on
each crucial fact issuc while at the same time giving a
higher appellate court, either the Florida Supreme
Court or this Court, a sufficient record upon vvhich to
review the decision. See failroad Commission v.
Maxcy, 281 U.S. 82, 83(1930); Goldberg v. Kelly, supra.

25
None of these salutary purposes is served by per
curiam. affirmances issued without written opinions.

At a bare minimum, due process should require
that with fully briefed appeals and a fortior: with fully
argued appeals, the Florida intermediate appellate
courts issue opinions or the citation of authorities
which it believes justifies the result; and if either of the
parties has marshaled alternate arguments, it should
identify which arguments prevailed. Accord, ABA
Standards Relating to Appellate Courts § 3.36(b) &
commentary at 67(2000)(“Litigants are entitled to
assurance that their cases have been thoroughly
considered. The public, also, is entitled to assurance
that the court is thus performing its duty. Providing
that assurance requires that the decision of every case
be supnorted at least by reference to the authorities or
grounds upon which it is based.”).Anything less
deprives parties before the Florida distriet courts of
appeals of a meaningful hearing with a fair opportunity
to present their claims. Armstrong v. Manzo, 380 U.S.
at 552. Logan v. Zimmerman Brush Co., 455 U.S. 422,
437(1982).

In the second place, the provision in the Florida
constitution which deprive further appellate review by
the Florida Supreme Court where the intermediate
courts fail to issue an opinion is an unconstitutional
denial of access to the courts. As the Boddie Court
explained, the State’s monopoly over the dispute
resolution machinery with its judicial and court
personnel means that it must exercise this power
evenhandedly so that every litigant is provided due
process. 40] U.S. at 374-377. Given that most litigants
in the Florida court system do not have any other

26
choice for resolving disputes, the machinery offered by
the State must provide a realistic remedy for all those
who enter its system. Logan v. Zimmerman Brush Co.,
supra. Wolff v. McDonnell, 418 U.S. 5389, 579(1974).
Boddie, supra. Bounds v. Smith, 480 US. 817,
828(1977).

Thus where the State provides a means of
appeal, it cannot then turn this opportunity into one
which is discriminatory, arbitrary and totally unrelated
to any state purpose. /d. See also Scott v. McNeal, 154
U.S. 34, 45-46(1894). The practice of issuing per curiam
decisions without opinions does jus® that; it penalizes
litigants for the dramatic increase in appeals which
have beset the court system since 1956. This systemic
official action, Christopher v. Harbury, 536 U.S. 403,
414-415 & n.12(2002), has deprived appellants in the
district courts of appeals of a meaningful hearing on
their claims and then deprived them of obtaining
further appellate review except by this Court via a
petition for certiorari, a less than 1% chance of
obtaining any relief. This inadequate judicial
machinery frustrates effective appellate review and
denies litigants meaningful access to the courts.

Third, this system of per curiam decisionmaking
without written opinion denies equal protection of the
laws to the.affected litigants. Two disparate classes are
created by this practice absent any legitimate reason
for doing so: those litigants who receive written
opinions disposing of their claims on appeal thereby
entitling them to seek further appellate review by the
Florida Supreme Court if they disagree with the court’s
reasoning and those litigants who receive no
explanation for the denial of their appellate claims and

at

are also deprived of further appellate review of those
claims except by this Court via a petition for certiorari.
Similarly situated people are thereby treated
differently and this intentional disparate treatment
without reason is the hallmark of invidious
discrimination. AMTRAK wv. Morgan, 536 U.S. 101,
116(2002). Missouri v. Jenkins, 515 U.S. 70, 121(19985).

This disparate treatment of Florida litigants is
further highlighted by the fact that Florida is one of
only two States which relegate its citizens to a one-tier-
only appeal through its issuance of per curiam
decisions without written opinions. All the other States
require the issuance of some kind of memorandum
decision by the intermediate appellate court and permit
another tier of discretionary further appellate review
by the State’s highest court in order to provide litigants
on appeal with due process and an effective appellate
remedy. The disparate treatment of Florida litigants
therefore is measured not only by reference to those in-
state litigants who receive written opinions but also by
those out-of-state litigants who enjoy another tier of
appellate remedies unavailable in Florida.

Finally, Florida’s appellate machinery denies
litigants substantive due process. The essence of
substantive due process is an individual’s right to be
free from the arbitrary action of government,
regardless of the fairness of the procedures employed
to implement that action. Collins v. Harker Hetghis,
503 U.S. 115, 125(1992). Daniels v. Williams, 474 U.S.
$27, 331(1986) citing Dent v. West Virginia, 129 US.
114, 1281889). It thus serves to prevent governmental
power from being “used for purposes of oppression.”
Dantels, 474 U.S. at 331-232(1986) quoting Murray's

28

Lessee v. Hoboken Land & Improvement Co., 18 How.
272, 277 (1856). The systemic official action by the State
of Florida, expressed through its constitutional scheme
defining the jurisdiction of the Florida Supreme Court
and permitting its intermediate appellate courts to
decide appeals through the use of per curiam decisions
without opinions is oppressive, arbitrary and unfair,
denying litigants who must resort to this system to
resolve disputes their substantive due process rights.

CONCLUSION

For the reasons identified herein, a writ of
certiorari should issue to the Second District Court of
Appeals in erder to review and reverse its per curiam
decision without opinion affirming the final summary
judgment in respondent’s tavor and against petitioner
by the Circuit Court for Sarasota County and to
supplement the record on appeal so that the
Harrisdirect letter of September 2002 to the decedent is
included therein; and the matter should be remanded to
the Circuit Court for Sarasota County for a trial of the
factual issues necessary to determine the decedent’s
intentions abcut the disposition of his IRA proceeds in
the wake of his divorce. This Court should also enter a
new judgment declaring that the use of per curiam
decisions without opinion by Florida’s intermediate
appellate courts denies affected appellants due process
or the equal protection of the laws; or provide
petitioner with such other relief as is fair and just in the
circumstances of this case.

29

Respectfully submitted,

DENNIS P. DERRICK CARLJ. ROBIE, IIT

7 Winthrop Street Counsel of Record

Essex, MA 01929-1203 2525 Sunnybrook Drive

(978) 768-6610 Sarasota, FL 34239
(941)865-2828

la

IN THE CIRCUIT COURT OF THE 127 JUDICIAL
CIRCUIT, IN AND FOR Sarasota COUNTY,
FLORIDA

Case No.:
Division:

Andreas David Bothe
Petitioner,

And

Pamela Jean Bothe
Respondent.

MARITAL SETTLEMENT AGREEMENT FOR
SIMPLIFIED DISSOLUTION OF MARRIAGE

We, (Husband’s full legal name) Andreas David Bothe
and (Wife’s full legal name) Pamela Jean Bothe, being
sworn, certify that the following statement are true:

1. We were married to each other on (date) August 12,
1967.

2. Because of irreconcilable differences in our marriage
(no chance of staying toget‘er), we have made this
agreement to settle once anc for all what we owe to
each other and what we can expect to receive from each
other. Each of us states that nothing has been held
back, that we have honestly included everything we
could think of in listing our assets (everything we own
and that is owed to us) and our debts (everything we
own), and that we believe the other has been open and
honest in writing this agreement.

2a
3. We have both filed a Financial Affidavit, Florida
Family Law Rules of Procedure Form 12.902(b) or (c).
Because we have voluntarily made full and fair
disclosure to each other of all our assets and debts, we
waive any further disclosure under rule 12.285, Florida
Family Law Rules of Procedure.

4, Each of us agrees to execute and exchange any
papers that might be needed to complete this
agreement, including deeds, title certificates, ete.

SECTION I. MARITAL ASSETS AND
LIABILITIES

A. Division of Assets. We divide our assets (everything
we own and that is owed to us) as follows; Any personal
item(s) not listed helow is the property of the party
currently in possession of the item(s).

1. Wife shall receive as her own and Husband shall have
no further rights or responsibilities regarding these
assets:

| ASSETS: DESCRIPTION OF ITEM(S) __| Current

| WIFE SHALL RECEIVE (To avoid Fair
confusion at a later date, described each Market
item as clearly as possible. You do not Value

need to list account numbers. Where
applicable, include whether the name on
any title/deed/account described below is
wife’s, husband’s, or both.)

Cash (on hand) | ____| $20950 |

Cash (in banks/credit unions) Certificates 700,000

»
oa

| of Deposit
Stocks/Bonds ETrade Acct - Pamela J. 253,198
Bothe
Real estate: (Home) 463 Piasso Drive _ 1,550,000
Nokomis FL

Automobiles: Lincoin 22,4(0()
Retirement plans (Profit Sharing, Pension, | 777,782

| IRA, 401(k)s, ete.) Pamela J. Bothe
Furniture & furnishings in home — | 10,000 an
Life insurance (cash surrender value) 32,480
First Colony — Pamela J. Bothe

Total Assets to Wife 3,366,755

2. Husband shall receive as his own and Wife shall have
no further rights or responsibilities regarding these

assets:

husband’s, or both.)

| ASSETS: DESCRIPTION OF ITEM(S) Current
| WIFE SHALL RECEIVE (To avoid Fair
_ confusion at a later date, described each Market
item as clearly as possible. You do not need | Value
_to list account numbers. Where applicable,

include whether the name on any

title/deed/account described below is wife’s,

$79,050

| Cash (on hand)

Cash (in banks/credit unions) Certificates of

1,000,000

da

| Deposit _

USAA account Andreas David Bothe

|

Stocks/Bonds ETrade Acct -
Rev Trust

30the Family

9800 |

203,193

|
|

Notes (money owed to you in writing)

| Hullinger

25,000

Real estate: (Rental) 11558 Aquamari ine
Circle, Fountain Valley, CA

740,000

Automobiles: 2000 Mercedes ST, 600

35,400

| 1998 Dodge Pickup

Boats: 9’ Suncoaster Sail Boat

SeaDoo & Trailer

| 8055

200

| Y500

_2002 Harley Davidson moroteycle & trailer

13,000

| Retirement plans (Profit Sharing, Pension,

IRA, 401(k)s, etc.) Andreas David Bothe

Collectibles Silver Ingot

Furniture & fur nishings i in home

Life insurance (eash surrender value) Fi irst
Colony — Andreas David Bothe

1,089,546

—————

=
pi T

32,480

fetc.)equipment

Sporting and entertainment (T.V., stereo,

10.000

|

Other Assets: RV airplane kit
“Air plane Engine

Propeller (air rplane)

16.9 12

| 27,614
16, 355

Ja

Engine Block
ee - —

i
{

B. Division of Liabilities/Debts. We divide our liabilities
(everything we owe) as follows

1. Wife shall pay as her own the following and will not
at any time ask Husband to pay these debts/bills.

| Total Debts to he Paid by None
| W ife

2. Husabnd shall pay as his own the following and will
not at any time ask Wife to pay these debts:

Total Debts to be Paid by | None

Husband | !
l certify that I have been open and honest in entering

into this settlement agreement. I am satisfied with this
agreement and intend to be bound by it.

Dated: Feb 21, 2006

s/Andreas David Bothe
Signature of Husband

State of Florida
County of Sarasota

Sworn to or affirmed and signed before me on Feb 21,
2006 by Andreas David Bothe

s/Lisa R. Wheeler
Notary Public

Dated: 2/13/2006

s/Pamela Jean Bi the
signature of Wife

State of Florida

County of Sarasota

sworn to or affirmed and signed befc. e me on I'eb 21,
2006 by Pamela Jean Bothe

s/Thida Sariya
Notary Pubhe

ia
Recorded: Mar 15, 2006
IN THE CIRCUIT COURT OF THE 12°" JUDICIAL
CIRCUIT, INAND FOR SARASOTA COUNTY,
FLORIDA

Case No. 2006-dr-1548 se
Division:

Andreas David Rothe
Petitioner,

And

Pamela Jean Bothe
Respondent.

FINAL JUDGMENT OF SIMPLIFIED
DISSOLUTION OF MARRIAGE

This cause came before this Court for a hearing on the
parties’ Petition for Simplified Dissolution of marriage
The Court having reviewed the file and heard the
testimony, makes these findings of fact and reaches
these conclusions of law:

1. The Court has jurisdiction over the subject matter
and the parties.

2. At least one party has been a resident of the State of
Florida for more than 6 months immediately before
filings the Petition for Simplified Dissolution of
Marriage.

3. The parties have no minor or dependent children in
common, and the wife is not pregnant.

Sa

4. The marriage between the parties is irretrievably
broken. Therefore, the marriage between the parties is
dissolved, and the parties are restored to the status of
being single.

5. Marital Settlement Agreement

a. The parties have voluntarily entered into a Marital
Settlement Agreement, and each has filed the required
Financial Affidavit. Therefore, the Marital Settlement
Agreement is filed as “Exhibit A” in this case and is
ratified and made a part of this final judgment. The
parties are ordered to obey all of its provisions.

6. Yes. The wife’s former name of (full legal name)
PAMELA JEAN HANSEN is restored.

-

?7. The Gourt reserves jurisdiction to enforce the
marital settlement agreement.

ORDERED on 3/15/06

CIRCUIT JUDGE

DLJ direct

IRA APPLICATION & ADOPTION AGREEMENT

INVESTOR INFORMATION

Account Owner’s Name: Andreas David Bothe
Date of Birth: Oct. 20 1943

Married: Yes

Mailing Address: 463 Picasso Drive
City/State/Zip: Nokomis, F'L 34275
Citizenship: U.S.

TYPE OF IRA YOU ARE OPENING

Participant IRA

PLEASE DESIGNATE YOUR
BENEFICIARY(UES) BELOW

I designate the following person or persons below as
primary and contingent beneficiaries for my IRA Plan.
Please attach additional paper if needed.

A. PRIMARY BENEFICIARY(ES)

Name: Pamela Jean Bothe

DOR: 9-30-45

Mailing Address: 463 Picasso Drive

City/State/Zip: Nokomis, FL 34275

If you are married, is your primary beneficiary your
Relationship: Wite

% of Benefits: 100%

Sex: Female

spouse?: Yes

10a

B. CONTINGENT BENEFICIARY(IES) To receive
benefits if none of the Primary Beneficiaries survive
me.

Name: Annemarie Bother

DOB: March 31, 1947

Mailing Address: 4065 SW 51* B
City/State/Zip: Ft Lauderdale, FL 33314
Relationship: Sister

% Benefits: 100

Sex: Female

FINANCIAL INFORMATION

Aecyunt Owner’s Annual Income: $100,000-$250,000
Account Owner's Net Worth: Over $1 million

YOUR EMPLOYMENT INFORMATION

Account Owner’s Employer: Retired

a a

PLEASE READ AND SIGN BELOW

To: DLJdireet Ine.

I have received and read the Customer Agreement, the
Individual Retirement Account Disclosure Statement
and Account Plan, and the Pershing Government
Account Prospectus, set forth in the DLJdirect IRA
disclosure document.

I understand that DLJdirect will invest and reinvest
the assets in the account only on my direction and will

lla

not give me legal, investment or tax advice or offer any
opinion on the value of any investment for my account.

I understand and agree that DLJdirect may tape-
record my telephone conversations.

I understand and agree that I will earn income on funds
invested in the Pershing Government Account
designated on this application in accordance with the
terms of the Prospectus of said fund, a current copy of
which I have read and understood.

I understand the following fees may be paid separately
or collected from my account balance: (a) and annual
maintenance fee: (b) account termination fee. DLJSC
may change the fee schedule from time to time, as
provided in the Individual Retirement Account
Disciosure Statement and Account Plan, and certain
other charges may apply.

I understand the rollover rules and conditions and I
have met the requirements for making a rollover. Due
to the important tax consequences of rolling over funds
or property I have been advised to see a tax
professional. All information provided by me is sure
incorrect and may be relied on by DLJdirect. I assume
full responsibility for rollover transactions and will not
hold DLJdirect liable for any adverse consequences
that may result. If I choose to make a rollover
contribution, I hereby irrevocably designate this
contribution and funds or other property as a rollover
contribution.

I hereby adopt the Donaldson, Lufkin & Jenrette
Securities Corp. Individual Retirement Custodial

12a

Account Plan (the “Plan”) (or any successor pursuant to
the terms of the Plan which is made part of this
agreement, establish the Account described above,
name DLJSC as Custodian if executed in due course. I
have read and understand, and agree to be bound by
the conditions of the Plan, the DLJdirect Customer
Agreement, and the Pershing Government Account as
described in the DLJdirect IRA Customer Agreement
brochure containing the IRA Disclosure Statement and
Account Plan (REV. Oct. 1992) as amended from time
to time.

Please note that the DLJdirect Customer Agreement
contains a pre-dispute arbitration agreement, which is
set forth in paragraph 22 & 23 of the Customer
Agreement.

s/Andreas David Bothe
Date: Oct 5, 1998

13a
Harrisdirect
Harborside Financial Center
501 Plaza II
Jersey City, New Jersey 07311

September 2002

IRA FBO ANDREAS D. BOTHE
DLJSC AS CUSTODIAN

463 PICASSO DR

NOKOMIS, F'L 34275-1448

Dear Harrisdirect Customer,

We are writing to inform you of some administrative
changes to your retirement account. Effective
November 1, 2002, Donaldson, Lufkin & Jenrette
Securities Corporation will resign as Custodian of your
retirement account and appoint Harris Investor
Services LLC ("HIS") as the new custodian. You will
still have the same account number and continued
access to your account through the Harrisdirect
services you have come to enjoy.

While the change in custodianship of your retirement
account has little effect on your account, it does require
that you complete a new adoption agreement. To
complete this change, the IRS requires a formal
agreement between you and HIS to ensure that your
account continues its special tax advantages.
Accordingly, we ask that you review the new
retirement documents and return the completed
adoption agreement in the postage paid envelope
provided. If you do not return the completed form or
transfer your account by November |, 2002, we may

l4a

close your retirement account and distribute the assets
to you, at which point you may be subject to income and
penalty taxes arising from the distribution unless you
roll over the assets to a new retirement account within
60 days. If you would rather transfer your account to
another custodian, please do so within thirty (30) days
from the date of this letter. Please note that choosing
another custodian will terminate your account with
Harrisdirect and you will be charged a $75 termination
fee as well as the appropriate current year annual
maintenance fee.

If you wish to update the contact information for your
account, you may do so in the Account Settings section
of the Harrisdirect Web site. Additionally, you can
change the beneficiary designation for your account by
sending us a completed IRA Designation of Beneficiary
form that is available in the Customer service section of
our web site.

[f you have any questions, please contact a Harrisdirect
representative at 1.800.825.5723 or visit a Harrisdirect
Investment Center near you.

Sincerely,

Barry Mione

Managing Director of Investor Services Harris
Investor Services LLC

Member NASD, SIPC

Donaldson, Lufkin & Jenrettc Securities Corporation

15a
March 21, 2006

Last Will and Testament of Andreas David Bothe

I have various assets in my state. Because a recent
divorce, some are owned by me individually, and others
are ina Family Trust.

My former wife, Pamela Jean Bothe, who is now known
as Pamela Jean Hansen is one of the current trustees.
Because I have not removed her from that position I
believe that she may distribute those assets that are
currently in the Trust in accordance with its provisions.
Therefore, all assets owned by the Trust should stay
there for the benefit of the surviving trustee and
grantor, Pamela Jean Bothe, who is now known as
Pamela Jean Hansen.

I wish to leave my Individual Retirement account to
Margaret Lindsey. I don’t know the mechanics of this.
However, 't is with E Trade Financial, account number
5729-3255. it is my wish that she have this for her
retirement.

I have a Mercedes-Benz Automobile, a Harley-
Davidson Motoreycle, and a Sea Doo watercraft that
are owned by me individually. The titles are on the
dining room table at my residence, 5029 Hanging Moss
Lane.

I have a stock account with FE Trade 6087-2086 in my
individual name

! wish to leave the stock account and all other items
owned by me individually to my sister, Anne Marie

l6a

Bothe. I request that the trustee distributes the other
stock account with E Trade 5726-8590, which is in the
name of the trust, also to my sister,Ann Marie Bothe.
Because my E Trade account, 6087-2086 is an Option
account I asked that my friend Henry Whitmore advise
my sister, Ann Marie Bothe on its proper
administration.

I forgive the obligation my sister, Ann Marie Bothe,
owes me on a second mortgage on her home in
Hollywood, Florida. When the mortgages satisfied in
the title clear, I wish the proceeds to go to her, I don’t
know the mechanics of this. However, that is my wish.

I wish the benefit of my First Commie Life Insurance
policy go to my former wife, Pamela Jean Bothe, now
known as Pamela Jean Hansen. She is the beneficiary
on the policy now. Is my wish that any proceeds go to
her.

I have a partially completed airplane located in a
hangar, JI-113, at the Sarasota Brandenton Airport.
There are sufficient resources in my estate for the
disposal of the airplane and the return of the hangar to
the condition required by the airport authority. I asked
the trustee to coordinate the disposal and return of the
hangar to its original condition.

All the documents that I have are on the dining room
table at 5029 Hanging Moss Lane.

s/Andreas David Bothe
Andreas David Bothe
March 21, 2006

17a
A.David Bothe
5029 Hanging Moss Lane
Sarasota, Florida 34238
March 21, 2006

Hey,

I love you. This is really hard for me today. I so wanted
to start my life over again with you as my wife and
companion.

The last 20 years with Pam have been very tough. |
resented many of the things she did. I always felt she
had other priorities.

I so loved being with you.

But, this damn depression started working on me again.
I keep trying to fight it. It keeps coming back.
Somehow Pam found all my e-mails to you. I don't
understand how that happened. Most of them prior to
September were quite innocuous. But, it seems she
found a way to get to almost all of them.

Even though there was nothing between us until the
separation, I still feel a tremendous sense of betrayal
and guilt. That is not your fault. You have been
wonderful.

I'm just very mentally screwed up. I can't realty bring
you into a situation where you need to take care of me.
I don't want to be put in some institution. I have not
been able to sleep or relax since January 15. I truly
cannot cope.

18a
[ have enclosed my last will and testament. I'm sure
you will have to get a lawyer to receive the money from
the retirement plan. I don't know anything about the
legalities of a will. But since I have-written out my
wishes in some detail I would hope that a court would
grant them.

I know I am a coward. It seems as though | hurt others
very much without meaning to. I just wanted to be
happy. | am so sorry about all of this. I hope you can
forgive me.

Goodbye
s/Dave

19a
Case No. 2D08-557
IN THE DISTRICT COURT OF APPEAL OF
FLORIDA
SECOND DISTRICT

ANNEMARIE BOTHE Appellant,
v.
PAMELA JEAN HANSEN, Appellee.

Opinion filed November 7, 2008.

Appeal from the Circuit Court for Sarasota County;
Robert B. Bennett, Jr., Judge.

Carl J. Robie, If, Sarasota, for Appellant.
Susan J. Silverman, Sarasota, for Appellee.

PER CURIAM.
Affirmed.

FULMER, WALLACE, and LaROSE, JJ., Concur.

20a
May 8, 2008
CASE NO.: 211308-557
L.T. No.: 06-CA-4875 SC

IN THE DISTRICT COURT OF APPEAL OF
FLORIDA
SECOND DISTRICT

ANNEMARIE BOTHE Appellant,
-

PAMELA JEAN HANSEN, Appellee.
BY ORDER of THE COURT:

Appellant's motion to supplement the record is granted
as to the court order of March 27, 2008, dismissing
E*Trade, and is denied as to the September 2002 letter
from Harrisdirect to appellant. Appellant shall make:
arrangements within three days with the clerk of
circuit court for the supplementation of the record with
the items mentioned in the motion, with the
supplemental record to be filed in this court within
twenty-five days from the date of this order,

I HEREBY CERTIFY that the foregoing is a true
copy of the original court order.

James Birkhold Clerk

2la

CASE NO. 2006 CA 4875 SC

IN THE CIRCUIT COURT IN AND FOR
SARASOTA COUNTY, FLORIDA CIVIL DIVISION
H

PAMELA JEAN HANSEN, Plaintiff,

VS.

E*TRADE FINANCIAL CORP., a foreign
corporation, and ANNEMARIE BLITHE, Defendants.

FINAL SUMMARY JUDGMENT

This case was heard on plaintiff's motion for summary
judgment. The court having reviewed the pleadings,
including those filed in support of and in opposition to,
the motion, as well as the legal precedents argued by
the parties, and being otherwise fully advised in the
premises, finds as follows:

Plaintiff was previously married. Her marriage was
dissolved March 15, 2006. Her former husband is now
deceased.

Plaintiff and her former husband entered into a marital
settlement agreement which provided for equitable
distribution of certain assets. Among the assets
received by the deceased former husband was an IRA
account which the former husband had opened with a
company called DLJ Direct. The decedent, at the time
of opening the account, had designated his then (now
former) wife the primary beneficiary of the account. At
some point, the account was acquired by defendant,
E*TRADE. When the marital settlement agreement
was executed, the IRA account was identified as an

) )

ee

account with E*TRADE. Therefore, it is clear that the
decedent was aware that his IRA account was held by
E*TRADE at the time the decedent and plaintiff were
divorced.

The marital settlement contained no: provision
requiring decedent to designate a beneficiary.

Plaintiff, by executing the marital settlement
agreement, gave up any right she then had to claim an
interest in the IRA. account. At that point, plaintiff had
a mere expectancy which was subject to extinction had
decedent designated a different primary beneficiary.

E*TRADE has policies regarding the designation of,
and change of, beneficiaries for its IRA accounts. One of
those policies provides that changes of beneficiary “only
be made on a form provided by or acceptable to us..."
The E*TRADE policies further require that any
change of beneficiary be "filed with us during your
lifetime."

Decedent never filed a change of beneficiary with
E*TRADE on a form provided by or acceptable to

E*TRADE during decedent's lifetime.

Both the plaintiff and the defendant, Bothe, seek
declaration of their rights to the IRA account.

The holding in Luszcz v. Lavoie, 787 So.2d 245 (T'la. 2d
DCA 2001) is dispositive of the issues in this dispute

Based on the foregoing, it is ADJUDGED:

1. Plaintiff is entitled to al Iproceeds of the decedent's

23a

E*TRADE IRA account (Account No. 5739-3255), and
defendant, E*TRADE, shall pay those proceeds over to
plaintiff as she may direct.

2. Defendant, ANNEMARIE BOTHE, © both
iidividually and as personal representative of
decedent's estate shall take nothing by her
counterclaim.

5. The court reserves jurisdiction to enforce the
provisions of this judgment and to determine any issues
regarding attorney fees and costs.

ADJUDGED at Venice, Sarasota County, Florida this
Ist day of February, 2008.

Robert B. Bennett, Jr.
Circuit Judge

24a

December 31, 2008
CASE NO.: 211308-557
L.T. No.: 06-CA-4875 SC

IN THE DISTRICT COURT OF APPEAL OF
FLORIDA
SECOND DISTRICT

ANNEMARIE BOTHE Appellant,
V.
PAMELA JEAN HANSEN, Appellee.

BY ORDER of THE COURT:

Appellant's motion for rehearing, rehearing en banc
and or written opinion is denied.

I HEREBY CERTIFY that the foregoing is a true
copy of the original court order.

1 Ad
James Birkhold
Clerk

OURT
C O;

Fe att Ae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0609%3A1. Public record. Not legal advice.