Hall v. AIR FORCE FINANCE CTR., ETC.

344 So. 2d 1340
CourtDistrict Court of Appeal of Florida
DecidedMay 2, 1977
DocketCC-58
StatusPublished
Cited by5 cases

This text of 344 So. 2d 1340 (Hall v. AIR FORCE FINANCE CTR., ETC.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hall v. AIR FORCE FINANCE CTR., ETC., 344 So. 2d 1340 (Fla. Ct. App. 1977).

Opinion

344 So.2d 1340 (1977)

William T. HALL, Appellant,
v.
AIR FORCE FINANCE CENTER, DEPARTMENT OF the AIR FORCE OF the UNITED STATES of America, Appellee.

No. CC-58.

District Court of Appeal of Florida, First District.

May 2, 1977.

Lacy Mahon, Jr., Mahon, Farley & Vickers, Jacksonville, for appellant.

Elliot Zisser, Zisser & Robison, Jacksonville, for appellee.

*1341 ERVIN, Judge.

The primary issue presented by this appeal is whether 42 U.S.C.A. § 659[1] supersedes Florida Statutes 222.11 and 222.12.[2]

A final judgment was entered in the Circuit Court of Duval County by which appellant (a member of the armed services) was found to be in arrears in child support and alimony payments required of him by a Final Judgment of Dissolution entered in California, and the California judgment was established as a judgment of the Circuit Court of Duval County. Appellant's former wife then filed in the Circuit Court of Duval County a Motion for Writ of Garnishment to which was attached an affidavit alleging that the monies sought to be recovered by garnishment were wages due appellant for his personal labor and services but that "they are not exempt according to the laws of the State of Florida nor of the laws of the United States of America." Appellant responded with a Motion to Dismiss the Motion for Writ of Garnishment and with an affidavit alleging that the monies sought to be recovered in the garnishment proceeding were indeed wages due him for personal labor and services and further that he is the head of a family residing in the State of Florida.[3]

The trial judge denied the Motion to Dismiss and granted the Motion for Issuance of Writ of Garnishment. This appeal followed.

Appellant argues that the trial court's order denying the husband's motion to dismiss and granting the wife's petition for writ of garnishment was error because the trial court necessarily concluded that 42 U.S.C.A. § 659 supersedes § 222.11 and § 222.12. The order did not so state. We disagree with any contention that the federal statute necessarily supersedes the exemption statutes, but rather find that 42 U.S.C.A. § 659 is compatible with Section 61.12, Florida Statutes (1975), which states in part:

"So much as the court orders of the money or other things due to any person or public officer, state, or county, whether the head of a family residing in this state or not, when the money or other thing is due for the personal labor or service of the person or otherwise, is subject to attachment or garnishment to enforce the orders of the court of this state for alimony, suit money or child support, or other orders in proceedings for dissolution, alimony, or child support; * * *"

The above section is derived from a statute first enacted by the legislature in 1901[4] and was intended by the legislature to stand as an exception to sections 222.11 and 222.12, by allowing garnishment of any person's *1342 wages to enforce orders or judgments of the court for alimony, suit money or child support. This statute has remained in effect with only minor modifications[5] since its original enactment until 1967 when it was amended by deleting any reference to the word "decrees."

Opinions — particularly the more recent opinions — construing the effect of the statute appear contradictory and should be carefully scrutinized.

In Reynolds v. Reynolds, 113 Fla. 361, 152 So. 200 (1933), the Florida Supreme Court specifically held that the predecessor statute to 61.12, section 4992, Comp.Gen.Laws 1927, applied, and was authority for the issuance of writs of garnishment to enforce orders or decrees for suit money or alimony. There, the former wife, after obtaining a divorce decree in which the husband was ordered to make alimony payments to the wife, applied to the court for a writ of garnishment directed to her husband's employer, alleging that the husband was delinquent in his alimony payments. The court concluded as follows:

"It is apparent that the legislation was intended to apply to all persons of every class, including public officers to whom money may be due for services or labor, and makes such moneys within limitations prescribed by the court's order in divorce cases or suits for alimony subject to garnishment. Nor does the legislation confine the subject to orders for alimony or suit money, because the words of the act expressly extend its provisions to other orders or decrees than orders for the payment of alimony or suit money." (Emphasis added.) Id. at 202.

In Robinson v. Robinson, 154 Fla. 464, 18 So.2d 29 (1944), the wife represented in her motion for writ of garnishment that her former husband had failed to pay alimony awarded her by a divorce decree and stated that the husband was to pay certain attorney's fees and court costs. It should be noted that the wife did not pursue garnishment proceedings under Chapter 77, Florida Statutes, but that she relied upon Section 65.13, Florida Statutes (the predecessor statute to section 61.12). The Florida Supreme Court affirmed an order granting a motion to dismiss garnishment proceedings on the ground that the wife had not complied with Chapter 77. However, the cause was remanded without prejudice to the wife to amend her motion for garnishment and proceed under the general garnishment statute. The following comments by the court are especially instructive:

"Garnishment is an exclusive statutory remedy, unknown to the common law, and we are unable to see how one seeking its advantages to effect the payment of allotments made in a final decree of divorce under Section 65.13, supra, could proceed without reference to any other statutory provision.
* * * * * *
We are familiar with the case of Reynolds v. Reynolds, 113 Fla. 361, 152 So. 200, 202, where the court considered proceedings in garnishment to enforce the payment of installments of alimony, but we do not find that the point presented here was determined there. On the contrary, the court said: `Whether that statute [65.13, supra] is confined in its operation to public officers against whom writs of garnishment may be issued to enforce orders for suit money or alimony is the question to which the inquiry in this case is limited.' It was held that the statute was not confined to persons of that class. The decision is authority then for the position of the appellant here that Section 65.13, supra, made garnishment available to her for the enforcement of the orders for suit money and alimony. Having decided to resort to that method to collect the money she claimed appellee owed her, it was necessary that she comply with the requirements of Chapter 77 *1343 if she expected the remedy to be effectual." (Emphasis added.) 18 So.2d at 31.

Later cases appear to muddy the water in instructing litigants which procedure to follow in attempting to enforce dissolution of marriage judgments. Some have refused to allow a writ of garnishment to issue unless an order had first been entered to enforce a previously entered judgment of dissolution.

In Noyes v. Cooper, 216 So.2d 799 (Fla. 3rd DCA 1968) a "final decree" was entered reducing to judgment certain past due sums owed to the former wife from the husband under a divorce decree previously entered. The wife first brought an action to garnish the husband's wages, then filed a motion attempting to proceed under Section 61.12.

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Bluebook (online)
344 So. 2d 1340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-v-air-force-finance-ctr-etc-fladistctapp-1977.