Anderson v. First National Bank

Court of Appeals of Georgia

Anderson v. First National Bank

260 S.E.2d 501, 151 Ga. App. 573, 1979 Ga. App. LEXIS 2647

CourtCourt of Appeals of Georgia

DecidedSeptember 4, 1979

Docket57601

StatusPublished

Cited by8 cases

This text of 260 S.E.2d 501 (Anderson v. First National Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Anderson v. First National Bank, 260 S.E.2d 501, 151 Ga. App. 573, 1979 Ga. App. LEXIS 2647 (Ga. Ct. App. 1979).

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Opinions

Underwood, Judge.

Gordon O’Kelley was convicted of murdering his wife and mother-in-law and was sentenced to two consecutive life sentences. The appellants who are immediate family members of the deceased women brought a civil suit against O’Kelley and obtained a judgment of $32,500. The judgment has not been satisfied, but O’Kelley receives monthly social security benefits based upon his physical disability. Due to his incarceration, O’Kelley’s social security checks are mailed to the First National Bank of Atlanta where they are deposited in O’Kelley’s account upon which account O’Kelley has authorized his sister to write checks.

The appellants initiated a garnishment proceeding against the bank seeking to obtain the funds in O’Kelley’s account in satisfaction of their judgment. The bank answered the summons of garnishment acknowledging the balance in the account, but took the position that the funds in the joint account, being proceeds of social security payments, are exempt from garnishment by Federal law. The appellants traversed the bank’s answer and the trial court ruled the funds in O’Kelley’s account are exempt from garnishment. The issue presented by this appeal is whether the funds in O’Kelley’s account lose their character as social security funds and their immunity to garnishment because the account is a joint one upon which his sister is authorized to make withdrawals.

Subchapter II of the Social Security Act, 42 USC 452, [574]*574§ 407, provides in pertinent part, that: "The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under the subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.” Code Ann. § 41A-3803 (a) provides that "A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions of each to the sums on deposit, unless there is clear and convincing evidence of a different intent.”

It is clear in these circumstances that the contributions to the subject account are made by O’Kelley and that the funds in the account belong to him. There is no "clear and convincing evidence of a different intent” in the record before us.

The cases cited by appellants, namely, Philpott v. Essex County Welfare Board, 409 U. S. 413 (93 SC 590, 34 LE2d 608) (1913); Porter v. Aetna Casualty & Surety Co., 370 U. S. 159 (82 SC 1231, 8 LE2d 407) (1962); and Lawrence v. Shaw, 300 U. S. 245 (57 SC 443, 81 LE 623) (1937) all reach a conclusion contrary to the position contended for by appellants in this appeal. As stated by appellants in their brief, the distinguishing test between "moneys paid” and "permanent investments” is how readily the funds on deposit are withdrawable. In the instant case, O’Kelley could withdraw all funds immediately simply by writing a check for the amount of the account. In Philpott, supra, p. 416, the Supreme Court of the United States stated that "[i]n the present case, as in Porter, the funds on deposit were readily withdrawable and retained the quality of'moneys’ within the purview of § 407.” The court also concluded that "it [§ 407] imposes a broad bar against the use of any legal process to reach all social security benefits. That is broad enough to include all claimants, including a State.” p.417

We find the funds in O’Kelley’s account under these facts to be social security "moneys paid” which are subject to withdrawal by O’Kelley and are exempt from garnishment pursuant to 42 USC 452, § 407. Accordingly, the trial court did not err in overruling and denying [575]*575appellant’s traverse.

Argued April 9, 1979 Decided September 4, 1979 Rehearing denied October 2, 1979. Eugene Novy, Gary Trachten, for appellants. Bates Block, Dorothy W. Atkins, for appellees.

Judgment affirmed.

Banke, Acting P. J., and Carley, J., concur.

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Underwood, Judge.

Gordon O’Kelley was convicted of murdering his wife and mother-in-law and was sentenced to two consecutive life sentences. The appellants who are immediate family members of the deceased women brought a civil suit against O’Kelley and obtained a judgment of $32,500. The judgment has not been satisfied, but O’Kelley receives monthly social security benefits based upon his physical disability. Due to his incarceration, O’Kelley’s social security checks are mailed to the First National Bank of Atlanta where they are deposited in O’Kelley’s account upon which account O’Kelley has authorized his sister to write checks.

The appellants initiated a garnishment proceeding against the bank seeking to obtain the funds in O’Kelley’s account in satisfaction of their judgment. The bank answered the summons of garnishment acknowledging the balance in the account, but took the position that the funds in the joint account, being proceeds of social security payments, are exempt from garnishment by Federal law. The appellants traversed the bank’s answer and the trial court ruled the funds in O’Kelley’s account are exempt from garnishment. The issue presented by this appeal is whether the funds in O’Kelley’s account lose their character as social security funds and their immunity to garnishment because the account is a joint one upon which his sister is authorized to make withdrawals.

Subchapter II of the Social Security Act, 42 USC 452, [574]*574§ 407, provides in pertinent part, that: "The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under the subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.” Code Ann. § 41A-3803 (a) provides that "A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions of each to the sums on deposit, unless there is clear and convincing evidence of a different intent.”

It is clear in these circumstances that the contributions to the subject account are made by O’Kelley and that the funds in the account belong to him. There is no "clear and convincing evidence of a different intent” in the record before us.

The cases cited by appellants, namely, Philpott v. Essex County Welfare Board, 409 U. S. 413 (93 SC 590, 34 LE2d 608) (1913); Porter v. Aetna Casualty & Surety Co., 370 U. S. 159 (82 SC 1231, 8 LE2d 407) (1962); and Lawrence v. Shaw, 300 U. S. 245 (57 SC 443, 81 LE 623) (1937) all reach a conclusion contrary to the position contended for by appellants in this appeal. As stated by appellants in their brief, the distinguishing test between "moneys paid” and "permanent investments” is how readily the funds on deposit are withdrawable. In the instant case, O’Kelley could withdraw all funds immediately simply by writing a check for the amount of the account. In Philpott, supra, p. 416, the Supreme Court of the United States stated that "[i]n the present case, as in Porter, the funds on deposit were readily withdrawable and retained the quality of'moneys’ within the purview of § 407.” The court also concluded that "it [§ 407] imposes a broad bar against the use of any legal process to reach all social security benefits. That is broad enough to include all claimants, including a State.” p.417

We find the funds in O’Kelley’s account under these facts to be social security "moneys paid” which are subject to withdrawal by O’Kelley and are exempt from garnishment pursuant to 42 USC 452, § 407. Accordingly, the trial court did not err in overruling and denying [575]*575appellant’s traverse.

Argued April 9, 1979 Decided September 4, 1979 Rehearing denied October 2, 1979. Eugene Novy, Gary Trachten, for appellants. Bates Block, Dorothy W. Atkins, for appellees.

Judgment affirmed.

Banke, Acting P. J., and Carley, J., concur.

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260 S.E.2d 501, 151 Ga. App. 573, 1979 Ga. App. LEXIS 2647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-first-national-bank-gactapp-1979.

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