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Hancock Whitney Bank v. Adams

Florida Court of Appeals, First District

January 8, 2020

John J. ADAMS; Ashley M. Adams; and Woodland Bayou Property Owners Association, Inc., Appellees.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

         On appeal from the Circuit Court for Walton County. Jeffrey E. Lewis, Judge.

          Robert S. Rushing and Travis M. Morock of Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, LLC, for Appellant.

         No appearance for Appellees.

         PER CURIAM.

         Appellant, Hancock Whitney Bank, appeals the trial court's nonfinal amended order granting Appellee Ashley M. Adams's claim of exemption from garnishment.[*] We reverse because Mrs. Adams

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failed to prove her entitlement to a statutory exemption.


         In October 2018, the trial court entered a final deficiency judgment in favor of Appellant, adjudging that it was entitled to recover from Appellees John J. Adams and Mrs. Adams the deficiency balance of $44,176.04 that remained due and owing under a final judgment of foreclosure. In March 2019, Appellant filed a writ of garnishment to Bank of America Corporation, which filed an answer representing that Mrs. Adams had $230.41 in a savings account and $5,480.75 in a checking account. Mrs. Adams filed a claim of exemption, claiming exemption from garnishment under four categories: (1) head of family wages—providing more than half of the support for a child or other dependent and having net earnings of more than $750 per week, but not having agreed in writing to wage garnishment; (2) reemployment assistance or unemployment compensation; (3) retirement or profit-sharing benefits or pension money; and (4) other—IRS refund. Appellant filed the affidavit of its vice president, who attested that Appellant has not received any payments to satisfy or reduce the deficiency judgment and the funds to be garnished are not exempt because they are not traceable to a qualifying source.

         Mrs. Adams appeared pro se at the evidentiary hearing on her claim of exemption. When she took the stand, the trial court asked her about the status of her divorce proceeding and she indicated that it had not been finalized and she and Mr. Adams had been separated for three years. With regard to her claims of exemption, Mrs. Adams explained that their minor children primarily reside with her and she provides about 75-80% of the financial support for them; she attends school full-time; and "some of those funds" in her account are from a loan she took out for school, an IRS refund, and an IRA withdrawal because she is not receiving any child support. Mrs. Adams is supposed to receive $1,259 per month in court-ordered child support, but Mr. Adams has not paid any of it; he has only paid a purge amount for back child support in August 2018. Mrs. Adams opened the Bank of America savings account for the purge amount Mr. Adams wired into it. Mrs. Adams deposits into the Bank of America checking account her wages and all other monies she receives, including money she gets from her family. Mrs. Adams works on an as-needed basis, with limited hours, and earns $28 per hour. She took out an unsubsidized federal loan in the amount of $2,600, dated February 11, 2019, that she deposited into her checking account and uses to pay her mortgage. She also deposited into the checking account an IRA check for $2,910.44 on March 12, 2019, and an IRS refund check for $5,555 around mid-March of 2019. She is not receiving unemployment benefits yet.

         Appellant argued that Mrs. Adams failed to meet her burden of proving the claimed exemptions and provided only self-serving testimony and some documentary evidence that showed she commingled non-exempt funds such as the IRS refund and student loan with any exempt funds and "[t]here's been no statements provided. There's been no tracing of the funds." Mrs. Adams replied that she did not know she needed to bring statements and added, "if you take away the IRS check that went in there, I had — it was my balance that was — that was frozen on that day. I have

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like $400 left in there. That's my income." The court stated, "I'm familiar. I have an order on my desk right now for back support which is a six-figure amount. . . ." The court then announced its ruling as follows:

I'm going to sustain the head of household objection — exemption for Mrs. Adams. I'm familiar with — with the circumstances and, except for that one purge, which was actually proceeds from — from an insurance policy, as I recall — or partially — . . . it was a lost payment back, but it was — it was designated to be back child support she hadn't received. She proved to me she had not been receiving any support or any substantial support in accordance with the earlier ruling. And notwithstanding the fact that — that she didn't differentiate between those, I'm satisfied that if you — if you looked at the continuum of — of the years, just having [p]resided over this matter myself for over two years now, ...

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