Green v. Department of Revenue Ex Rel. Williams
2011 Fla. App. LEXIS 4664
| Fla. Dist. Ct. App. | 2011Background
- DOR garnished a bank account solely in Green Jr.'s name to collect his child support arrears.
- Green Sr. filed an unverified petition in the 409 garnishment proceeding claiming ownership of the garnished funds.
- Green Sr. alleged the funds came from a reverse mortgage on his homestead and were his to use for his benefit.
- The trial court dismissed, finding Green Sr. was not a joint owner and lacked standing in the 409 proceeding.
- DOR argued only the obligor may contest a levy; Green Sr. had no co-owner status or proper third-party pleading.
- Green Sr. argued Rule 12E-1.028 extends joint-owner rights to notice/hearing; he also cited 77.16 for third-party claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Green Sr. is a joint owner entitled to a hearing in the garnishment. | Green Sr. argues he is a joint owner under Rule 12E-1.028(9). | DOR contends Green Sr. is not a joint owner since not on the account. | Green Sr. is not a joint owner based on current pleading; issue remanded for proper pleading and hearing if pursued. |
| Whether Green Sr.'s unsworn petition suffices to trigger an evidentiary hearing. | Green Sr. seeks an evidentiary hearing under third-party ownership principles. | DOR argues unsworn petition and lack of factual basis prevent a hearing. | Petition insufficient as unsworn and conclusory; requires sworn allegations and proper basis to overcome presumption of ownership. |
| What is the proper remedy when there is a third-party claim to funds in a garnished account not identified as a joint owner in bank records? | Green Sr. should obtain relief via Chapter 409 with an evidentiary hearing if properly pled. | DOR contends remedy lies in Section 77.16 or in denying standing in 409 proceeding absent proper pleadings. | Remanded to determine ownership via sworn 77.16 affidavit if applicable; 409 hearing may proceed to resolve ownership if properly pled. |
Key Cases Cited
- Ginsberg v. Goldstein, 404 So.2d 1098 (Fla. 3d DCA 1981) (funds must be actually owned to be garnished; equitable title governs ownership)
- Thomas J. Konrad & Assoc., Inc. v. McCoy, 705 So.2d 948 (Fla. 1st DCA 1998) (presumption funds belong to account name; not conclusive; focus on equitable title)
- RPS, Inc. v. Travel Max Int'l Inc., 823 So.2d 243 (Fla. 4th DCA 2002) (third-party claims to property; need evidentiary hearing to resolve ownership)