01-003656 Margaret Hartigan vs. Department Of Revenue, Child Support Enforcement Program Status: Closed Recommended Order on Monday, December 3, 2001.

Summary: Non-obligor joint bank account owner bears clear and convincing burden of proof to show entitlement to funds as against Department of Revenue, Child Support Division, in proceeding to garnish child support obligor`s funds.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARGARET HARTIGAN, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3656

)

DEPARTMENT OF REVENUE, CHILD )

SUPPORT ENFORCEMENT PROGRAM, )

)

Respondent. )

)

RECOM MENDED ORDER

Upon due notice, a disputed - fact hearing was held in this

case before Ella Jane P. Davis, a duly - assigned Administrative

Law Judge of the Division of Administrative Hearings, on

October 26, 2001, in Ocala, Florida.

APPEARANCES

For Peti tioner: Suzanne K. Edmunds, Esquire

Withlacoochee Area Legal Services, Inc.

222 Southwest Broadway Street

Ocala, Florida 34474

For Respondent: Robert Lehrer, Esquire

Department of Revenue

Child Support Enforcement Program

Post Office Box 8030

Tallahassee, Florida 32314 - 8030

STATEMENT OF THE ISSUE

Whether the Department of Revenue, Ch ild Support Enforcement

Program, may levy bank accounts held jointly by Petitioner and

Donald F. Ziesmer and apply the funds to reduce or satisfy

Mr. Ziesmer's past due child support obligation.

PRELIMINARY STATEMENT

On or about November 16, 2000, Respo ndent Department of

Insurance, Child Support Enforcement Program, sent a Notice of

Intent to Levy to Donald F. Ziesmer, boyfriend of the Petitioner,

Margaret Hartigan.

In the Notice, the Department advised Mr. Ziesmer that it

intended to levy on his pers onal property in the form of liquid

assets in the control of the Florida Credit Union. According to

the Notice, the proposed action was being taken because of

Mr. Ziesmer's failure to pay child support in the amount

of $7,534.08. The Notice also advise d that a non - obligor joint

owner, who claimed to have an equal right to all of the money

levied upon in a joint account, had a right to contest the

Department's action. Petitioner, as a non - obligor joint owner,

timely challenged the Department's action an d requested an

administrative hearing.

On or about September 18, 2001, the Department referred the

matter to the Division of Administrative Hearings.

At the disputed - fact hearing on October 26, 2001, Petitioner

testified on her own behalf and had Petit ioner's Exhibits A, B,

C, and D, admitted in evidence. Respondent presented the oral

testimony of Pamela Ellingsworth and Donald F. Ziesmer.

Respondent had eight exhibits admitted in evidence (DOR1 - 8). The

parties' Stipulation of Facts was admitted as J oint Exhibit 1.

No transcript was provided. Petitioner timely filed a

Proposed Recommended Order on November 5, 2001. Respondent filed

a letter critiquing Petitioner's Proposed Recommended Order,

which critique was docketed one day late. Respondent fi led

another letter of correction and legal argument, which was

docketed November 11, 2001.

Respondent's filings were late (first by one day, and

secondly by eight days), and do not comply with the rules

enunciated in the Post - Hearing Order entered Octobe r 26, 2001.

For these reasons, it is within the discretion of the undersigned

to strike both filings, but there having been no motion to do so,

they have been considered simultaneously with Petitioner's

Proposed Recommended Order.

FINDINGS OF FACT

1. On September 4, 1992, an Order and Judgment was filed in

the case of Shirley Skubish v. Donald F. Ziesmer (Skubish v.

Ziesmer) , Case No. 85 - 1368 - CA, in the Circuit Court of the 19th

Judicial Circuit, in and for Martin County, Florida. Pursuant to

thi s Order and Judgment, Donald F. Ziesmer was ordered to pay

$48.00 per week in current child support for two minor children,

and an additional $5.00 per week on a child support arrearage of

$4,571.00, which was established as being owed by Mr. Ziesmer as

of August 19, 1992. (Joint Stipulation).

2. On May 19, 1994, an Order of Contempt was filed in

Skubish v. Ziesmer , under which, inter alia , Mr. Ziesmer's child

support obligations as set out in the September 4, 1992, Order

and Judgment were continued, a nd a child support arrearage of

$6,108.37, was established as being owed by Mr. Ziesmer as of

May 5, 1994. (Joint Stipulation).

3. On May 14, 1998, an Enforcement of Child Support

Agreement and Order on Stipulation was filed in Skubish v.

Ziesmer , un der which Mr. Ziesmer's child support obligation, as

set out in the September 1992 Order and Judgment were continued,

and a child support arrearage of $1,246.08, was established as

being owed by Mr. Ziesmer as of May 6, 1998. (Joint

Stipulation).

4. On January 29, 1999, a Recommended Order and Order on

Motion for Enforcement, Contempt and Income Deduction was filed

in Skubish v. Ziesmer , in which Mr. Ziesmer's child support

obligation, as set out in the September 1992 Order and Judgment

was continued, an d a child support arrearage of $2,686.08, was

established as being owed by Mr. Ziesmer as of December 2, 1998.

(Joint Stipulation).

5. On December 28, 1999, a Recommended Order and Order on

Motion for Enforcement, Civil Contempt and IBO was filed in

S kubish v. Ziesmer , under which, inter alia , Mr. Ziesmer's child

support obligations as set out in the September 4, 1992 Order and

Judgement were continued, and a child support arrearage of

$5,182.08, was established as being owed by Mr. Ziesmer as of

Decem ber 1, 1999. (Joint Stipulation).

6. The official payment records of the Martin County Clerk

of Court established that Mr. Ziesmer owed past due child support

in Skubish v. Ziesmer , in the amount of $7,534.08, as of

November 9, 2000. (Joint Stipulatio n).

7. On or before November 9, 2000, Petitioner and her

boyfriend, Donald Ziesmer, opened a joint checking account

(account number: 262746 - 8), and a joint savings account (account

number: 262746 - 0), (hereafter, "the FCU joint accounts") with

the Flor ida Credit Union, Gainesville, Florida. (Joint

Stipulation).

8. At the time that the accounts were opened and at all

times material, Petitioner and Mr. Ziesmer were living together

on Petitioner's Social Security disability income and gifts from

her f ather, and Mr. Ziesmer's Veterans Administration disability

income and gifts from his mother and other relatives. At no time

material were either Petitioner or Mr. Ziesmer working for a

living or earning any income.

9. Petitioner was receiving Social Security disability

benefits of about $530.00, per month, during the period of

September 2000 through November 2000. Her benefits were

deposited into an EBT account in her name, only, with Citicorp

Electronic Financial Services, Inc., Tampa, Florida. (Jo int

Stipulation).

10. Petitioner made a one - time deposit in September 2000,

of a lump sum disability payment of $659.00.

11. Her Social Security disability payments were made to

Petitioner monthly by an EBT card in an uneven amount which was

not a multiple of $20.00. An EBT card works like an ATM card

for purposes of withdrawals. Most ATMs only permit withdrawals

of cash in 20 - dollar increments, with fees attaching to each

withdrawal. Because Petitioner's EBT monthly credit was in an

amount whic h was not a multiple of 20 - dollars, she could not

access the balance of approximately $13.00 each month unless she

had a checking account. Also, she needed to write checks so she

could prove she had paid certain domestic bills.

12. The accounts were ope ned primarily to allow Petitioner

to access her last $13.00 each month.

13. The accounts were opened as joint accounts because

Petitioner's bad credit kept her from being able to open a

checking account in her name alone. Petitioner and Mr. Ziesmer

both intended that the accounts be used only by Petitioner, and

Petitioner is the only one who used the accounts.

14. Petitioner and Mr. Ziesmer have never been married to

each other.

15. On November 9, 2000, Respondent mailed a Notice of

Freeze to the Florida Credit Union, Gainesville, Florida, by

certified mail, return receipt requested, regarding any accounts

held by Mr. Ziesmer. The Notice was received by the credit union

on November 13, 2000. (Joint Stipulation).

16. Pursuant to the Notice of Freeze, the Florida Credit

Union froze the FCU joint accounts on November 13, 2000.

17. On November 16, 2000, Respondent mailed a Notice of

Intent to Levy on Mr. Ziesmer, by certified mail, return receipt

requested. Mr. Ziesmer received the Notice af ter November 16,

2000. (Joint Stipulation).

18. The Notice of Freeze and Notice of Intent to Levy

satisfied Respondent's statutory notice requirement in Section

409.25656, Florida Statutes.

19. Petitioner filed a timely Petition for Administrative

Hea ring on November 29, 2000. (Joint Stipulation).

20. Respondent Department's agency representative, Pamela

Ellingsworth, Revenue Specialist II, testified that it is the

Department's standard procedure to give any joint account

holders, who do not owe t he back child support, the opportunity

to show the source of accounts frozen by the Department. She

further testified that the Department normally releases back to

the non - debtor/non - obligor joint account holder those funds which

the non - debtor can establ ish are his or her own funds, separate

and apart from those of the child support debtor/obligor.

According to Ms. Ellingsworth, if a percentage of contributions

to the account(s) can be determined, the Department's standard

procedure is to release back th at percentage of proven funds to

the non - debtor/non - obligor.

21. Between October 1, 2000 and November 13, 2000, thirteen

deposits were made into the FCU joint accounts. Twelve deposits

were of cash only. One deposit, on October 6, 2000, was from a

ch eck for $150.00 ($130.00 "net" deposit) written to Petitioner

by her father. (Joint Stipulation, modified by testimony as to

"father").

22. Petitioner testified, without refutation, that the

funds deposited came only from the two sources: Petitioner's

S ocial Security benefits and gifts by cash or check from

Petitioner's father. Petitioner and Mr. Ziesmer testified,

without refutation, that no deposits to the accounts were made by

Mr. Ziesmer. Although both witnesses have mental disabilities

and take he avy medication, they were credible on this issue

because credit union statements and other documents regarding the

FCU accounts were admitted into evidence, which documents

materially mirror their testimony regarding amounts received,

deposited, and disb ursed. (Petitioner's Exhibits A, B, C, and

D).

23. Mr. Ziesmer's income from disability payments at all

times material was only $101.00 per month, with one slightly

larger one - time lump sum payment. The amounts he received in

gifts varied. He did no t recall exact amounts. He gave

Petitioner cash for food and no monies of his were deposited into

the joint accounts.

24. The Department established that in September 2000, the

couple signed a lease together on a house for $550.00 per month.

However, t heir testimony shows they were evicted less than two

months later for failure to pay, and they no longer live

together.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pu rsuant to Section 120.57(1) and Chapter 400, Part III, Florida

Statutes.

26. The Department is the State agency responsible for the

administration of the Child Support Enforcement Program, pursuant

to Subsection 409.2557(1), Florida Statutes.

27. Se ction 409.2557(2), Florida Statutes, charges the

Department with the collection of child support obligations.

28. Because the Department seeks to levy upon the FCU joint

accounts, it must prove by a preponderance of the evidence that

the proposed levy is authorized by Section 409.25656, Florida

Statutes. In the absence of specific statutory or case law to

the contrary, the party asserting the affirmative of a factual

issue, or seeking to change the status quo (in this case, to

seize/garnish monies from citizens' accounts) has the ultimate

duty to go forward and the burden of proof by a preponderance of

the evidence. Moore v. State, Department of Health and

Rehabilitative Services , 596 So. 2d 759 (Fla. 1st DCA 1992);

Florida Department of Transportation v. J.W.C. Co. , 396 So. 2d

778 (Fla. 1st DCA 1981); Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977).

29. Section 409.25656, Florida Statutes, provides, in

pertinent part,

409.25656 Garnishment.

(1) If a pe rson has a support obligation

which is subject to enforcement by the

department as the state Title IV - D program,

the executive director or his or her designee

may give notice of past due and/or overdue

support by registered mail to all persons who

have in their possession or under their

control any credits or personal property,

including wages, belonging to the support

obligor, or owing any debts to the support

obligor at the time of receipt by them of

such notice. Thereafter, any person who has

been notif ied may not transfer or make any

other disposition, up to the amount provided

for in the notice, of such credits, other

personal property, or debts until the

executive director or his or her designee

consents to a transfer or disposition, or

until 60 days after the receipt of such

notice. If the obligor contests the intended

levy in the circuit court or under chapter

120, the notice under this section shall

remain in effect until final disposition of

that circuit court or chapter 120 action.

Any financial institution receiving such

notice will maintain a right of setoff for

any transaction involving a debit card

occurring on or before the date of receipt of

such notice.

(2) Each person who is notified under this

section must, within 5 days after receipt of

the notice, advise the executive director or

his or her designee of the credits, other

personal property, or debts in their

possession, under their control, or owed by

them and must advise the executive director

or designee within 5 days of coming into

possession or control of any subsequent

credits, personal property, or debts owed

during the time prescribed by the notice.

Any such person coming into possession or

control of such subsequent credits, personal

property, or debts shall not transfer or

dis pose of them during the time prescribed by

the notice or until the department consents

to a transfer.

(3) During the last 30 days of the 60 - day

period set forth in subsection (1), the

executive director or his or her designee may

levy upon such credits, personal property, or

debts. The levy must be accomplished by

delivery of a notice of levy by registered

mail, upon receipt of which the person

possessing the credits, other personal

property, or debts shall transfer them o the

department or pay to the d epartment the

amount owed to the obligor.

(4) A notice that is delivered under this

section is effective at the time of delivery

against all credits, other personal property,

or debts of the obligor which are not at the

time of such notice subject to an attachment,

garnishment, or execution issued through a

judicial process.

(5) The department is authorized to bring an

action in circuit court for an order

compelling compliance with any notice issued

under this section.

(6) Any person acting in accor dance with the

terms of the notice or levy issued by the

executive director or his or her designee is

expressly discharged from any obligation or

liability to the obligor with respect to such

credits, other personal property, or debts of

the obligor affect ed by compliance with the

notice of freeze or levy.

(7)(a) Levy may be made under subsection (3)

upon credits, other personal property, or

debt of any person with respect to any past

due or overdue support obligation only after

the executive director or his or her designee

has notified such person in writing of the

intention to make such levy.

(b) Not less than 30 days before the day of

the levy, the notice of intent to levy

required under paragraph (a) must be given in

person or sent by certified or registered

mail to the person's last known address.

(c) The notice required in paragraph (a)

must include a brief statement that sets

forth:

1. The provisions of this section relating

to levy and sale of property;

2. The procedures applicable to t he levy

under this section;

3. The administrative and judicial appeals

available to the obligor with respect to such

levy and sale, and the procedures relating to

such appeals; and

4. The alternatives, if any, available to

the obligor which could pre vent levy on the

property.

(d) The obligor may consent in writing to

the levy at any time after receipt of a

notice of intent to levy.

(8) An obligor may contest the notice of

intent to levy provided for under subsection

(7) by filing a petition in t he existing

circuit court case. Alternatively, the

obligor may file a petition under the

applicable provisions of chapter 120. After

an action has been initiated under chapter

120 to contest the notice of intent to levy,

an action relating to the same le vy may not

be filed by the obligor in circuit court, and

judicial review is exclusively limited to

appellate review pursuant to s. 120.68 .

Also, after an action has been initiated in

circuit court, an action may not be brought

under chapter 120.

(9) An action may not be brought to contest

a notice of intent to levy under chapter 120

or in circuit court, later than 21 days after

the date of receipt of the notice of inte nt

to levy.

(10) The department shall provide notice to

the Comptroller, in electronic or other form

specified by the Comptroller, listing the

obligors for whom warrants are outstanding.

Pursuant to subsection (1), the Comptroller

shall, upon notice fro m the department,

withhold all payments to any obligor who

provides commodities or services to the

state, leases real property to the state, or

constructs a public building or public work

for the state. The department may levy upon

the withheld payments i n accordance with

subsection (3). Section 215.422 does not

apply from the date the notice is filed with

the Comptroller until the date the department

notifies the Compt roller of its consent to

make payment to the person or 60 days after

receipt of the department's notice in

accordance with subsection (1), whichever

occurs earlier.

(11) The Department of Revenue has the

authority to adopt rules to implement this

sectio n.

30. The Department has cited to no other statute or

existing rule dealing with the rights of non - obligors/non -

debtors.

31. The Department established that Donald F. Ziesmer had a

past due child support obligation that was subject to enforcement

by the Department, which totaled $7,534.08, as of December 1999.

32. The parties stipulated that the Department had given

the notices required by Section 409.25656, Florida Statutes, to

the financial institution and to the obligor. It was also

clearly e stablished that the non - obligor joint account holder,

Petitioner, received adequate and appropriate notice.

33. Pursuant to Section 689.15, Florida Statutes, an

instrument creating a joint tenancy must expressly provide for a

right of survivorship. Ot herwise, unless the joint tenants are

husband and wife, the estate created is one of tenancy in common. 1

Herein, the signature card(s) for the joint accounts were not

presented, the couple is not married, and the Joint Stipulation

does not specify a right of survivorship. Therefore, there is no

proof of an express provision of a right of survivorship. 2

Petitioner and Mr. Ziesmer were living together without benefit

of clergy, so without an express right of survivorship, there is

no presumption at law tha t a joint estate was intended, let alone

that the account holders intended to create a joint estate with

right of survivorship.

34. Each share of a joint tenancy with right of

survivorship is presumed to be equal for purposes of alienation

(in this case, garnishment). Beal Bank, SSB v. Almand and

Associates, et al , 780 So. 2d 45 (Fla. S. Ct. 2001). That is not

necessarily the case where there is a joint tenancy with no right

of survivorship, but Petitioner and the Department have proceeded

as if the rig ht of survivorship had been agreed - upon. Assuming

that it has been, this case is still subject to the case law

applicable to garnishment, not survivorship.

35. When a joint bank account is established with the funds

of one person, there is a rebuttabl e presumption that a gift was

made of these funds to the other person. DeSoto v. Guardianship

of DeSoto , 664 So. 2d 66 (Fla. 1st DCA 1995); Hagopian v. Henry

Zimmer , 653 So. 2d 474 (Fla. 3rd DCA 1995); Ginsberg v.

Goldstein , 404 So. 2d 1098 (Fla. 3rd DCA 1981).

36. It has been stated in Ginsberg v. Goldstein , supra ,

In accordance with the basic principle of

garnishment that a plaintiff merely stands in

the shoes of a judgment debtor, see Howe v.

Hyer , 17 So. 925 (1895); Barsco, Inc. v.

H.W.W., Inc. , 3 46 So. 2d (Fla. 1st DCA 1977),

it is universally held that property which is

not actually in "good conscience" deemed to

be owned by the debtor may not be secured by

the judgment creditor, 38 C.J.S. Garnishment,

Section 71 (1943); 6 Am. Jur. 2d. Attachmen t

and Garnishment, Section 92 (1963) . . .

[T]he depositor's creditor is not entitled to

the money if it is actually owned by somebody

else. Instead, the somebody else is. E.g.,

Susman v. Exchange National Bank of Colorado

Springs , 117 Colo. 12, 183 P.2d 571, 573 - 74

(1947). As is accurately stated, based on

the cases collected,

Funds of defendant on deposit

in a bank are subject to

garnishment in the absence of

special circumstances creating

an exemption. However, the

ga rnishing creditor can reach

funds of the depositor only in

cases where the depositor is the

true owner thereof.

For the purposes of garnishment

a bank deposit prima facie belongs

to the person in whose name it

stand s, the general test being

whether, but for the garnishment,

the deposit would be subject to

defendant's check, or whether

defendant could sue the bank

therefor in debt or assumpsit.

These considerations, however,

a re not conclusive, and the fact

that the depositor can withdraw or

maintain an action for the deposit

does not in all cases render the

deposit subject to garnishment at

the instance of a creditor of the

depositor.

37. G insberg is a case in which a husband deposited funds

arguably belonging soley to his wife into an account in his name

alone, and upon proper proof, the wife was able to recover all of

her discrete funds (in that case more than an equal share of the

account ) in preferance to the husband's judgment creditor.

38. It has been held that for purposes of an estate of

joint tenancy with right of survivorship or of tenancy by the

entirety, only clear and convincing evidence to the contrary will

rebut the presumpti on of both spouses owning the whole of the

res . Winterton v. Kaufman , 504 So. 2d 439 (Fla. 3rd DCA 1987)

rev . den . 515 So. 2d 231 (Fla. 1987). The difference in a

tenancy by the entirety situation is that because of the unities

of the marital estate, eac h spouse is presumed to own an interest

in the undivided whole, and one spouse's creditors cannot reach

any part of the assets held jointly, unless a transfer to the

account is proven fraudulent. Sitomar v. Orlan , 660 So. 2d 1111

(Fla. 4th DCA 1995). 3 Se e also Thomas J. Konrad & Assocs. v.

McCoy , 705 So. 2d 948 (Fla. 1st DCA 1998).

39. The Department asserts Petitioner herein also bears

such a "clear and convincing" burden to establish her independent

entitlement to any part of the joint accounts in t his case. I

concur. DeSoto , supra , makes clear that same burden of proof is

to be applied here, where a tenancy by the entirety is not

involved. In DeSoto , joint accounts were opened in three names:

a brother, a sister, and the brother's wife. The brot her and

sister contributed funds to the accounts. The brother's wife

contributed nothing to the accounts. The sister was apparently

unable to prove entitlement to all of the deposits she claimed to

have made, but the court ultimately held that the sister was

entitled to one - third of the res of the accounts. Therein, the

court said:

Funds contributed to a joint bank account by

one of the owners of the account are presumed

to be a gift to the other owners of the

account absent clear and convincing evidence

to the contrary. Hagopian v. Henry Zimmer ,

653 So. 2d 474 (Fla. 3rd DCA 1995) . . .

Neither party presented evidence sufficient

to overcome the presumption that each party

owns an equal share of the funds. Thus (the

sister) was entitled to a one - third s hare of

the funds. . . .

40. Hagopian , supra , is in line with the foregoing

reasoning. The fact that DeSoto , cites In re : Guardianship of

Medley , 573 So. 2d 892 (Fla. 2nd DCA 1990) for a corollary

premise and Beal Bank, SSB , supra , disapproves Medley , for yet a

third and different corollary premise ( see Footnote one) is not

dispositive of the case at bar.

41. Since there is no proof of a right of survivorship in

these accounts, Petitioner may not have had to bear any burden of

proof. However, Petit ioner has established, by clear and

convincing evidence, that she never intended to give her income

(account deposits) to Mr. Ziesmer. While Mr. Ziesmer benefited

from some of the things on which Petitioner spent her money,

i.e., electricity, telephone, a nd lodging, the deposits

themselves were not being presented to him as a gift.

Furthermore, the cash was derived from Petitioner's independent

funds, to which Mr. Ziesmer had no legal entitlement, and it was

agreed between the account - holders that Mr. Zie smer would not

draw on the joint bank accounts. 4

42. Petitioner, having borne her burden to prove by clear

and convincing evidence that the joint accounts were established

with her independent funds and were never intended as a gift to

Mr. Ziesmer, shi fted the burden of proof to the Department. The

Department has not rebutted her direct evidence. Therefore, the

Department has not met its ultimate burden by a preponderance of

the evidence to establish the elements of Section 409.25656,

Florida Statutes .

43. Even if the foregoing case law, applicable to

independent funds within a joint bank account, were not applied,

it appears from Ms. Ellingsworth's testimony that the Department

has determined that Section 409.25656, Florida Statutes, only

authoriz es the Department to garnish that proportion of a joint

account not independently attributable to the non - obligor joint

account owner. On that basis alone, the Department has no

entitlement to these joint accounts.

44. As explained by the court in Boa rd of Medical Examiners

v. Durrani , 455 So. 2d 515 (Fla. 1st DCA 1984),

An agency's construction of the statute it

administers is entitled to great weight and

is not to be overturned unless clearly

erroneous. . . . [T]he agency's

interpretation of a statut e need not be the

sole possible interpretation or even the most

desirable one; it need only be within the

range of possible interpretations.

See also Koger v. Department of Business and Professional

Regulation, Board of Clinical Social Work, Marriage, Fam ily,

Therapy and Mental Health Counselors , 647 So. 2d 312, (Fla. 5th

DCA 1994).

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED

That the Department enter a Final Order which releases the

frozen joint a ccount balances to Petitioner alone.

DONE AND ENTERED this 3rd day of December, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of December, 2001.

ENDNOTES

1/ The presumption in favor of tenancy by the entirety when a

married couple jointly owns personal property shifts the burden

of proof to the creditor to prove by a preponderance of the

evidence that a tenancy by the entireties was not created. Beal

Bank, SSB v . Almand and Associates, et al . 780 So. 2d 45 (Fla.

Supreme Court 2001), disapproving Terrace Bank v. Brady , 598

So. 2d 225 (Fla. 2nd DCA 1992).

2/ Use of the words "and" or "or" is not dispositive as between

husband and wife. An express designation on the signature card

that it is a tenancy by the entirety ends such inquiry. As

between a debtor and a third party creditor, if the signature

card of a bank account does not expressly disclaim tenancy by the

entirety, a rebuttable presumption arises tha t the account titled

in the name of both spouses is held as a tenancy by the entirety,

provided the unities of the marital estate are in accord. Beal,

Bank, SSB v. Almand and Associates, et al . 780 So. 2d 45 (Fla.

S. Ct 2001), receding from First Nationa l Bank v. Hector Supply

Company , 254 So. 2d 777; I n re : Estate of Lyons , 90 So. 2d 39;

Bailey v. Smith , 103 So. 833, Winters v. Parks , 91 So. 649. If a

signature card expressly states that the bank account is not held

as a tenancy by the entireties and an other form of legal

ownership is expressly designated, no presumption of tenancy by

the entireties arises; disapproving In re : Guardianship of

Medley , 573 So. 2d 892.

3/ Sitomar has been modified by the recent case of Beal Bank,

SSB , supra , but its expla nation of the basic distinctions between

a tenancy by the entirety and other joint tenancies is still good

law. Because the instant case involves persons who, by virtue of

their failure to wed, can never form a tenancy by the entirety,

and due to the conf using nature of some case law, it is

worthwhile to explain the difference. In Sitomar , the court

said:

A unique aspect of a tenancy by the entirety

is that each such spouse is "seized of the

whole of the entirety, and not of a share,

moiety, or divisible part . . . in a tenancy

by the entirety neither spouse may sever or

forfeit any part of the estate without the

assent of the other, so as to defeat the

right of the survivor . . . The non -

severability aspect of a tenancy by the

entirety precludes a bank a ccount so held

from being subject to execution to satisfy an

individual debt of either spouse. . .

4/ The tests applicable to determining independent funds,

independent control of the accounts, and the intent of the

parties as set forth in Sitomar v. Or land , supra , at page 1115,

have been adapted to the circumstances of this case.

COPIES FURNISHED :

Suzanne K. Edmunds, Esquire

Withlacoochee Area Legal Services, Inc.

222 Southwest Broadway Street

Ocala, Florida 34474

Robert Lehrer, Esquire

Department of Revenue

Child Support Enforcement Program

Post Office Box 8030

Tallahassee, Florida 32314 - 8030

Bruce Hoffmann, General Counsel

Department of Revenue

204 Carlton Building

Tallahassee, Florida 32399 - 0100

James Zingale, Executive Director

Department of Revenue

104 Carlton Building

Tallahassee, Florida 32399 - 0100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Orde r should be filed with the agency that will

issue the Final Order in this case.