227 So. 2d 55 | Fla. Dist. Ct. App. | 1969
Lead Opinion
This appeal brings for review an order of the trial court dissolving a writ of garnishment. The question to be decided is whether on the undisputed facts of this case F.S.1967, Section 61.12, F.S.A.,
Appellant was the wife of appellee when the parties entered into an agreement dated June 2, 1961, wherein the appellee husband agreed to pay certain sums to the wife for the “support, education and maintenance” of the minor children of the marriage. Six weeks later appellant wife obtained a divorce in the State of Alabama. The final decree of divorce dated July 18, 1961, made no reference to the support agreement nor did the decree contain any provision for the support of the children.
In January, 1967, the former wife filed in the Court of Record of Broward County
We affirm the order dissolving the writ of garnishment. Although the record does not disclose whether appellee is the head of a family residing in this state, this fact was apparently conceded in the court below and is neither questioned in this court nor does the record affirmatively show the fact to be otherwise. Assuming this fact, appellee’s wages would be exempt from garnishment by virtue of F.S.1967, Section 222.11, F.S.A., unless the exception provided by F.S.1967, Section 61.12, F.S.A., would apply. However, both by its expressed wording and by judicial construction,
Affirmed.
. F.S.1967, Section 61.12, F.S.A. Attachment or garnishment of amounts due for alimony. 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 courts of this state for alimony, suit money or support, or other orders in actions for divorce or alimony * * *.
.F.S.1967, section 222.11, F.S.A. Ememption of wages from garnishment. No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this state, when the money or other thing is due for the personal labor or services of such person.
. Reynolds v. Reynolds, 1933, 113 Fla. 361, 152 So. 200.
. Noyes v. Cooper, Fla.App.1968, 216 So. 2d 799; cf. Howell v. Howell, Fla.App. 1968, 207 So.2d 507.
Concurrence Opinion
(concurring specially).
I agree to the affirmance solely because the wife did not proceed under the provisions of F.S.1967, Section 61.12, F.S.A., by first obtaining an order of court authorizing the issuance of the writ of garnishment. On the contrary, she obtained the writ from the clerk as provided for writs of garnishment “after judgment”. Such was the case in Noyes v. Cooper, supra. Had the wife proceeded as directed by Section 61.12, by obtaining, first, an order for the writ, the result may have been different. See Reynolds v. Reynolds, supra. Howell v. Howell, supra, has no application to the question now before the court, since it does not concern garnishment.