BARTOLOME P. COSTA, APPELLANT,
v.
ALICIA COSTA, APPELLEE
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In a post-divorce dispute, the appellate court reversed an order denying the husband's motion to dissolve a garnishment of his bank account for an unpaid attorney's fee judgment. The court held that Florida's exemption statutes apply to enforce judgments for unpaid attorney's fees in divorce cases, distinguishing such judgments from direct enforcement of alimony or support orders.
The court held that Florida's exemption statutes apply to garnishment proceedings for collection of judgments entered for nonpayment of attorney's fees in divorce cases. Section 61.12, which permits garnishment to enforce direct orders for alimony, support, and suit money, does not override exemptions when enforcing a judgment that has been entered for nonpayment of such fees.
[1] A statute authorizing attachment or garnishment to enforce divorce-related orders does not override statutory exemptions when a judgment for unpaid fees has been entered…
[2] A judgment entered for nonpayment of an attorney's fee in a divorce action, with execution authorized, is subject to statutory exemptions for the debtor.
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Join FLexlaw to unlock all legal intelligence“Under those decisions the provisions of § 61.12 Fla.Stat., F.S.A., overriding the exemptions in proceedings for enforcement of orders for payment of alimony, support, etc. in such actions, are not applicable for collection of a judgment (with execution authorized) which has been entered for nonpayment thereof.”
Establishes the critical distinction that § 61.12 exemption overrides do not apply to garnishment for judgments entered for nonpayment of fees, only to direct enforcement of alimony/support orders.
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Join FLexlaw to unlock all legal intelligenceFollowing a divorce judgment in April 1971 in which the court awarded the wife's attorney a $1,500 fee, the fee remained unpaid approximately eighteen…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Following a judgment entered April 8, 1971, granting the appellant husband a divorce from the defendant wife, in which the court retained jurisdiction to award an attorney’s fee, an order was made directing the husband to pay an attorney’s fee of $1,500 to the wife’s attorney. Approximately eighteen months after entry of the divorce judgment, the fee not having been paid, the court entered judgment therefor and authorized issuance of execution.
Predicated thereon, the wife’s attorney sought and obtained a writ of garnishment against Midtown Bank of Miami. The garnishee’s answer revealed that the amount it held to the credit of the husband was $612.07. The husband, proceeding under § 222.06 Fla.Stat., F.S.A., filed a motion to dissolve the writ of garnishment, supported by an affidavit of exemption in which his said bank account was listed as an asset for exemption.
This appeal is by the husband from an order of the court denying his motion to dissolve the garnishment. The appellant contends the order was in error in that thereby he was denied the benefit of exemption provided for by law. The appellee argues that exemption claimed by defendant is not available because of § 61.12 Fla. Stat., F.S.A., whereby there was authorized attachment or garnishment of so much as the court should order of the money or other things due to the head of a family “for the personal labor or service of the person or otherwise,” to enforce orders of the court “for alimony, suit money or support, or other orders in actions for divorce or alimony.”
We hold that the argument of the appel-lee as set out above cannot prevail, and the order appealed from must be reversed on authority of Graham v. Azar, Fla.1967, 204 So. 2d 193, and Noyes v. Copper, Fla.App. 1968, 216 So. 2d 799.
Under those decisions the provisions of § 61.12 Fla.Stat., F.S.A., overriding the ex emptions m proceedings for enforcement of orders for payment of alimony, support, etc. in such actions, are not applicable for collection of a judgment (with execution authorized) which has been entered for nonpayment thereof.
On the authority of the above cited cases, upon the showing made by the appellant husband in the trial court the garnishment should have been dissolved. The order appealed from is reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hall v. AIR Force Fin. Ctr., 344 So. 2d 1340 (Fla. 1st DCA 1977)…at while the wife could not prevail by seeking garnishment under the statute, it implied that she could recover had she followed the “general law relative to garnishment after judgment. . . .”, citing Robinson v. Robinson, supra. In Costa v. Costa, 285 So. 2d 665 (Fla. 3rd DCA 1973), the court reversed an order denying a motion to dissolve a writ of garnishment. The writ was issued upon a judgment which authorized execution for an unpaid attorney’s fee in a prior divorce action. Based upon its prior opinion…
Authorities Cited
- Grady A. Barnard v. Crews, 204 So. 2d 193 (Fla. 1967)
- Tamora G. Noyes v. Cooper, 216 So. 2d 799 (Fla. 3d DCA 1968)