03-003684 Michael L. Wright vs. Department Of Revenue, Child Support Enforcement Program Status: Closed Recommended Order on Thursday, January 22, 2004.

Summary: Petitioner objected to the circuit court`s order to garnish past due arrearage in child support from a joint account. Respondent demonstrated that all funds were attributable to Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL L. WRIGHT, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3684

)

DEPARTMENT OF REVENUE, CHILD )

SUPPORT ENFORCEMENT PROGRAM, )

)

Respondent. )

)

REC OMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

before Jeff B. Clark, Administrative Law Judge, Division of

Administrative Hearings, on December 11, 2003. The hearing was

conducted in Tallahassee, Florida, and Tampa, Florida, via video

teleconference.

APPEARANCES

For Petitioner: Michael L. Wright, pro se

Carolyn David Adult Family Home

4416 Porpoise Drive

Tampa, Florida 33617 - 8316

For Respondent: Robert Lehrer, Esquire

Department of Revenue

Child Support Enforcement Program

Post Office Box 8030

Tallahassee, Florida 32314 - 8030

STATEMENT OF THE ISSUE

Is it appropriate for Res pondent, Department of Revenue,

Child Support Enforcement Program, to garnish funds for past due

child support reduced to judgment from a joint account pursuant

to Section 409.25656, Florida Statutes (2001)? 1

PRELIMINARY STATEMENT

On October 22, 2001, Resp ondent sent a Notice of Intent to

Levy to Petitioner. In the Notice of Intent to Levy, Respondent

advised Petitioner that it intended to levy on Petitioner’s

personal property, in the form of liquid assets, in the control

of the Suncoast Schools Federal C redit Union ("Suncoast").

(Respondent had previously sent Suncoast a Notice of Freeze on

October 15, 2001.) According to the Notice of Intent to Levy,

Respondent’s proposed action was being taken because of

Petitioner’s nonpayment of child support in the amount of

$16,121.06. Petitioner challenged Respondent’s intended action

and requested an administrative hearing.

On May 1, 2002, Respondent initially referred the matter to

the Division of Administrative Hearings to conduct the hearing;

the Division of Administrative Hearings assigned Case

No. 02 - 1714 to the case. At that time, Petitioner was a patient

at the Florida State Hospital, Chattahoochee, Florida.

Ultimately, Respondent filed a Motion to Relinquish Jurisdiction

on March 10, 2003, primarily on the grounds that Petitioner was

a patient at Florida State Hospital, Chattahoochee, Florida, and

that Respondent had requested that a guardian ad litem be

appointed for Petitioner; Respondent’s request was denied on the

grounds that Administrative Law Jud ges did not have the

authority to appoint a guardian ad litem . An Order Closing File

was entered on March 12, 2003.

After Petitioner was released from the Florida State

Hospital, Respondent filed a Motion to Reopen File on October 6,

2003; the case was r eopened as Case No. 03 - 3684 pursuant to an

Order Granting Motion to Re - Open File issued on October 6, 2003.

The final hearing in this case was set for December 11,

2003, at 2:00 p.m., in Tallahassee, Florida, and Tampa, Florida,

via video teleconference pu rsuant to a notice of hearing issued

on November 7, 2003.

The final hearing convened as noticed. Petitioner and a

court reporter were present at the site in Tampa, Florida;

Respondent’s counsel, two witnesses for Respondent, and the

undersigned were prese nt at the site in Tallahassee, Florida.

Respondent’s Exhibits 1 and 2, appropriately certified records

of the Circuit Court in and for Hillsborough County, Florida,

were admitted into evidence prior to any testimony being

presented. Petitioner testified but did not present a case and

did not present the testimony of any other witnesses.

Petitioner indicated that his sister, the joint account holder,

was not able to attend the hearing. Respondent presented the

direct examination testimony of two witnesse s, Denise Buchanan

and Audrey Obinyan, and the cross - examination testimony of

Petitioner. During the testimony of Respondent’s witnesses,

Respondent’s remaining exhibits were admitted into evidence as

Respondent's Exhibits 3, 4, and 5.

The final hearing on December 11, 2003, was recorded, but

was not transcribed. At the conclusion of the hearing, the

undersigned gave the parties until December 31, 2003, to file

proposed recommended orders and written legal arguments.

Petitioner timely filed a Proposed R ecommended Order and a

memorandum of law , which have been considered by the undersigned

in the preparation of this Recommended Order.

FINDINGS OF FACT

1. On December 20, 1985, an Order of Support was issued in

Derrick v. Wright in the Hillsborough County Circuit Court;

pursuant to this Order, Petitioner was ordered to pay $25.00 per

week for the current support of his minor child, Mesheal Lee

Wright, born on April 20, 1983, commencing December 16, 1985.

2. On February 10, 1995, a Recommendation of Hearing

Officer and a Findings of Fact and Order on Motion for Contempt

in Derrick v. Wright were filed in the Hillsborough County

Circuit Court, which adjudicated Petitioner’s child support

arrearage in the case to be $10,639.02 as of October 7, 1994.

3. On Ma y 11, 1995, a General Findings and Order of Arrest

Instanter in Derrick v. Wright was filed in the Hillsborough

County Circuit Court, which adjudicated Petitioner’s child

support arrearage in the case to be $9,463.02 as of

December 31, 1994.

4. On or abo ut May 13, 2002, a Recommendation of Hearing

Officer and a Findings and Establishing Arrears in Derrick v.

Wright were filed in the Hillsborough County Circuit Court,

which adjudicated Petitioner’s child support arrearage in the

case to be $16,121.06 as of April 9, 2002, and ordered

Petitioner to pay $167.00 per month in liquidation of his

arrearage, commencing May 1, 2002.

5. All the arrearage was owed by Petitioner to the

custodial parent of the minor child; none of the arrearage was

owed to the state.

6 . On October 15, 2001, Respondent mailed a Notice of

Freeze in an amount up to $16,121.06 to Suncoast by certified

mail, return receipt requested, regarding any accounts of

Petitioner with the credit union; Suncoast received the Notice

of Freeze on Octobe r 18, 2001.

7. Suncoast confirmed a freeze on Petitioner’s joint

account in the amount of $5,573.95 as of October 18, 2001.

8. The signature card, produced as an exhibit by the

Respondent, stipulated that the account was owned as a joint

tenancy with rig ht of survivorship by Petitioner and a non -

obligor joint account holder, Petitioner's sister.

9. On October 22, 2001, Respondent mailed a Notice of

Intent to Levy in an amount up to $16,121.06 to Petitioner by

certified mail, return receipt requested; the Notice of Intent

to Levy was received and signed for at the Florida State

Hospital, Chattahoochee, Florida, on October 23, 2001.

10. The Notice of Intent to Levy advised that a non -

obligor joint owner, who claimed to have an equal right to all

of the mon ey levied upon in a joint account, had a right to

contest Respondent’s action. The non - obligor joint account

holder did not file a petition to contest the levy nor did she

appear at the final hearing.

11. On or about November 5, 2001, Petitioner filed a

Petition - Disputed Issues of Material Fact with Respondent.

12. Respondent sent a Notice of Extension of Freeze in an

amount up to $16,121.06 to Suncoast on November 9, 2001.

13. Pursuant to the official records of the Hillsborough

County Circuit Court in Derrick v. Wright , Petitioner’s child

support arrearage was $16,121.06 as of November 21, 2003.

14. Petitioner and his sister, Sandra W. Russaw, opened a

joint account with survivorship rights at Suncoast on

November 21, 1997. The Suncoast account had balances of less

than $100.00 for 12 of the first 25 months it was open including

the five months immediately preceding January 20, 2000, when

$3,900.00 was deposited in the account.

15. On December 27, 1999, Petitioner had $3,655.00

deposited in a Reside nt Trust Account he maintained at the

Florida State Hospital, Chattahoochee, Florida. These funds,

which were deposited by the U.Seasury, were followed by a

deposit of $749.00 from the same source. These funds were

initial payments to Petitioner for Veteran's Administration

benefits.

16. On January 14, 2000, $4,200.00 was withdrawn in the

form of a check from Petitioner's Resident Trust Account at the

Florida State Hospital. On January 20, 2000, $3,900.00 was

deposited in the Suncoast account.

17. Over the next 23 months, from January 20, 2000, to

November 31, 2001, $20,538.00 directly attributable to

Petitioner was deposited in the Suncoast account. The money was

from Veteran's Administration benefits paid to Petitioner by

direct deposit. Not sur prisingly, upon notification of the

Notice of Freeze the monthly checks from the Veteran's

Administration stopped being deposited in Petitioner's Suncoast

account.

18. On March 8, 2000, $5,000.00 was withdrawn from the

Suncoast account, and on July 10 and 20, 2000, $4,990.00 was

deposited in the same account. With the exception of the

July 2000 deposits, only $1,490.00 in deposits to the Suncoast

account are not directly attributable to Petitioner.

CONCLUSIONS OF LAW

19. The Division of Administrative H earings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57(1), Fla. Stat. (2003).

20. Respondent is the state agency responsible for the

administration of the state’s child support enforcement program.

§ 409.2557(1) , Fla. Stat.

21. Subsection 409.2557(2), Florida Statutes, provides in

pertinent part the following:

(2) [Respondent] in its capacity as the

state Title IV - D agency shall have the

authority to take actions necessary to carry

out the public policy of en suring that

children are maintained from resources of

their parents to the extent possible.

[Respondent’s] authority shall include, but

not be limited to, the establishment of

paternity or support obligations, as well as

the modification, enforcement, and

collection of support obligations.

22. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue in the proceeding. Department of Transportation v. J.W.C.

Company, Inc. , 396 So. 2d 778 (Fl a. 1st DCA 1981); Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977). In this proceeding, Respondent seeks to

levy the past due child support owed by Petitioner from his

credit union accounts. Therefore, to pre vail in this

proceeding, Respondent must establish by a preponderance of

evidence that the proposed levy is authorized by Section

409.25656, Florida Statutes.

23. Section 409.25656, Florida Statutes, provides in

pertinent part the following:

Garnishment.

(1) If a person has a child support

obligation which is subject to enforcement

by [Respondent] 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 p ersons who have in their possession or

under their control any credits or personal

property, including wages, belonging to the

child support obligor, or owing any debts to

the child support obligor at the time of

receipt by them of such notice. Thereafter ,

any person who has been notified 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

cha pter 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 desi gnee 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, o r debts shall not transfer or

dispose 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 de signee

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

the m to the department or pay to

[Respondent] the amount owed to the obligor.

* * *

(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 child support obliga tion

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 b e 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 pro perty;

2. The procedures applicable to the 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 an y, available to

the obligor which could prevent levy on the

property.

* * *

(8) An obligor may contest the notice of

intent to levy provided for under subsection

(7) by filing an action in circuit court.

Alternatively, the obligor may file a

petit ion 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 levy 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.

24. The above - quoted provisions enumerate the

prerequisites that must be met prior to Respondent’s levying

upon a person’s credits, personal property, or debts. First,

Respondent must determine that the person has a child support

obligation that is subject to enforcement by Respondent.

Second, when Respondent establishes that the perso n has a past

due or overdue child support obligation that is subject to

enforcement by Respondent, it must demonstrate further that

there has been compliance with the notice requirements

enumerated in Section 409.25656, Florida Statutes.

25. Prior to levy ing upon the credits, personal property,

or debts of any child support obligor, Respondent is required to

give notice by registered mail to all persons known to have in

their possession or under their control any credits or personal

property belonging to t he obligor or owing any debts to that

obligor of its intent to levy. The notice should direct such

person not to transfer or dispose of the credits, personal

property, or debts until Respondent consents to a transfer or

disposition or until 60 days after receipt of the notice.

§ 409.25656(1), Fla. Stat. Next, persons who receive the

foregoing notice are required to advise Respondent of credits or

other personal property owned by the obligor, or debts owed by

them to the obligor, that are in their posses sion or under their

control. § 409.25656(2), Fla. Stat. Finally, prior to

Respondent’s levying upon credits, other personal property, or

debts of a child support obligor, it must provide notice to the

obligor that comports with the requirements of Subsec tion

409.25656(7), Florida Statutes.

26. Petitioner had a past due child support obligation

that was subject to enforcement by Respondent; the amount of

past due child support owed by Petitioner was $16,121.06 as of

November 21, 2003.

27. Respondent gave the statutorily - required notice to the

financial institution, Suncoast, that held personal property

owned by Petitioner in its possession and under its control.

28. Respondent issued to Petitioner a Notice of Intent to

Levy which: (1) notified Petitione r that Respondent intended to

levy upon his personal property, i.e. , liquid assets, in the

control of Suncoast; (2) stated that the action was being taken

for Petitioner’s nonpayment of child support; and (3) advised

Petitioner of his due process rights. This Notice of Intent to

Levy provided to Petitioner by Respondent fully complied with

the requirements of Subsection 409.25656(7), Florida Statutes.

29. Each share of a joint tenancy with right of

survivorship is presumed to be equal for purposes of alie nation

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

Associates , 780 So. 2d 45, 53 (Fla. 2001).

30. A creditor of one of the joint tenants may attach the

joint tenant’s portion of the property owned as a joint tenancy

with right of survivorsh ip to recover that joint tenant’s

individual debt. Beal Bank , 780 So. 2d at 53.

31. It has been stated in Ginsberg v. Goldstein , 404 So.

2d 1098, 1099 - 1100 (Fla. 3rd DCA 1981),

In accordance with the basic principle of

garnishment that a plaintiff merel y stands

in the shoes of the judgment debtor, see

Howe v. Hyer , 36 Fla. 12, 17 So. 925 (1895);

Barsco, Inc. v. H.W.W., Inc. , 346 So. 2d 134

(Fla. 1st DCA 1977), it is universally held

that property which is not actually and in

“good conscience” deemed to b e owned by the

debtor may not be secured by the judgment

creditor. 38 C.J.S. Garnishment s 71

(1943); 6 Am.Jur.2d Attachment and

Garnishment s 92 (1963). This rule is

directly applicable to the bank deposit

situation before us. Even though, as here,

the debtor holds a general account in his

own name, thus creating a simple creditor -

debtor relationship between him and the

bank, Camp v. First National Bank of Ocala ,

44 Fla. 497, 33 So. 241 (1902), and a

concomitant obligation by the bank to pay

out the fun ds at his direction, Aronson v.

First Savings & Trust Co. of Tampa , 139 Fla.

240, 190 So. 524 (1939), the 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, at 38 C.J.S.

Garnishment s 80 (1943):

Funds of defendant on deposit in a bank are

subject to garnishment in the absence of

special circumstances creating an exemption.

However, the garnishing creditor can reach

funds of the depositor only in cases where

the depositor is the true owner thereof.

32. Respondent has shown that virtually all the funds

frozen in Petitioner’s a ccount at Suncoast belong to Petitioner;

no evidence was presented that indicated that any of the funds

not directly attributable to Petitioner were the funds of the

joint account holder. Respondent was able to trace through

deposit slips and the timing o f withdrawals from Petitioner’s

Resident Trust Account at Florida State Hospital and

corresponding deposits into the joint account at Suncoast,

subsequent direct deposits by the Veteran's Administration to

Suncoast, the ownership of virtually all the fund s in the

Suncoast account back to Petitioner through the presentation of

Petitioner’s account records and through testimony.

33. The joint account holder did not assert ownership of

the funds, either independently or in conjunction with her

brother.

34. In light of the foregoing, Respondent has met its

burden of proof in this proceeding. Therefore, Respondent is

authorized to levy on Petitioner’s credit union account with

Suncoast up to either the full amount owed by Petitioner in past

due child support as of November 21, 2003, i.e. , $16,121.06, or

to the full amount frozen, whichever is less, and to apply those

funds to reduce his past due child support obligation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is her eby

RECOMMENDED that Respondent enter a final order that:

(1) levies upon the funds in Petitioner’s credit union account

with Suncoast Schools Federal Credit Union, Tampa, Florida, up

to the amount of unpaid child support as of November 21, 2003,

i.e. , $ 16,121.06, or to the full amount frozen, whichever is

less; (2) applies the funds levied to satisfy all or part of

Petitioner’s past due child support obligation; and (3) credits

Petitioner for the amount so applied.

DONE AND ENTERED this 22nd day of Janua ry, 2004, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SU NCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of January, 2004.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes

(2001) unless otherwise indicated.

COPIES FURNISHED :

Robert Lehrer, Esquire

Department of Revenue

Child Support Enforcement Program

Post Office Box 8030

Tallahassee, Florida 32314 - 8030

Michael L. Wright

Carolyn David Adult Family Home

4416 Porpoise Drive

Tampa, Florida 3361 7 - 8316

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 Order should be filed with the agency that

will issue the Final Order in this case.