Dixie Van Aernam - Page 18




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          weight, since unsupported by evidence.  Petitioner’s testimony              
          that Steven had money contradicts respondent’s conclusion that              
          Steven had no income or assets.  On brief, respondent states that           
          Steven is currently serving the third year of a 15-year prison              
          sentence.  Respondent has not shown any effort to obtain Steven’s           
          testimony as to the extent of his assets.  Respondent has failed            
          to carry his burden of proving that Steven was insolvent within             
          the meaning of Fla. Stat. sec. 726.103(1) because he has failed             
          to establish the fair value of Steven’s assets.  Respondent                 
          having failed to do that, we cannot say that Steven was insolvent           
          within the meaning of Fla. Stat. sec. 726.103(1).                           
                    c.  Fla. Stat. Sec. 726.103(2)                                    
                Under Fla. Stat. sec. 726.103(2), a debtor is presumed to             
          be insolvent if he is generally not paying his debts as they                
          become due.  Respondent has failed to propose any finding with              
          respect to whether Steven was generally paying his debts as they            
          came due.  Respondent’s argument on brief is that Steven “was               
          unable to pay his debts as they became due, since his assets were           
          of limited value and his income producing potential had                     
          dissipated.”  That argument has no more traction here than it did           
          with respect to Fla. Stat. sec. 726.103(1).  While, on the                  
          transfer date, Steven may have been liable for his tax bills,               
          respondent has failed to prove that, generally, he was not paying           
          his debts as they came due.                                                 






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