Park v. Park

Aug 29, 1988
No. 86-CVF-105
Versions:541 N.E.2d 640
44 Ohio Misc. 2d 23
1988 Ohio Misc. LEXIS 24
Daniel, J.

This matter came on to be heard upon the motion of the intervening defendant, National City Bank, Norwalk, for an order determining the property rights of the parties in the certificate of deposit under garnishment. The court finds that the judgment debtor, Jay C. Park, failed to request the hearing provided for by R.C. 2716.13. Attorney Douglas A. Burtt appeared on behalf of the debtor for the sole purpose of requesting a continuance, which request was overruled. However, the judgment debtor did not appear. The judgment creditor was present and represented by Dennis J. Eberly. The intervening defendant, National City Bank, Norwalk, was represented by Paul F. Kutscher, Jr.

The court finds from the evidence and from the court’s own records that Agnes L. Park is sixty-eight years of age and is the creditor on a judgment with a principal balance of $3,135.93 as of August 5,1988, against Jay C. Park. National City Bank, Norwalk, is the payor bank for a certificate of deposit in the principal amount of $6,610.95 payable to “Agnes L. Park for Life, Principal to Jay C. Park on death of Agnes L. Park.”

The court can find no authority for the garnishment of a remainder interest in a certificate of deposit. The court looks to the law of real estate for guidance and concludes that such an interest is subject to execution if it is a vested interest, subject to divestment, but not if it is a contingent interest. Crum v. Crum (1940), 65 Ohio App. 431, 31 Ohio Law Abs. 397, 19 O.O. 40, 30 N.E. 2d 448. It is the uncertainty of the right of enjoyment contrasted with the uncertainty of its actual enjoyment which distinguishes, respectively, a contingent estate from a vested estate subject to divestment. Ohio Natl. Bank v. Boone (1942), 139 Ohio St. 361, 22 O.O. 414, 40 N.E. 2d 149. In Ohio, the language of the grant in this case is generally recognized as creating a vested remainder subject to divestment. Millison v. Drake (1931), 123 Ohio St. 249, 174 N.E. 776. In fact, when there is doubt or ambiguity in the language, the law favors construction of the estate as a vested remainder. Ohio Natl. Bank v. Boone, supra. The court concludes that the debtor’s interest in this certificate of deposit is a vested remainder subject to divestment, and that, therefore, it is subject to garnishment.

For the purpose of establishing the *24value of the debtor’s interest as of August 5, 1988, the court relies upon “Table A,” as set forth in Section 20.2031-7(f), commonly referred to as the “Unisex Table.” The person holding the life interest is sixty-eight years old; therefore, the remainderman’s interest (or present worth) is 36.39 percent of the principal, or $2,405.72. Ordinarily, the court would order the garnishee bank to divide the proceeds of the certificate of deposit between the owner of the life interest and the re-mainderman, and pay the remainder-man’s share into the court for disbursement to the judgment creditor. However, in this case the owner of the life interest and the judgment creditor are one and the same person, and she does not wish to have the certificate of deposit disturbed. Since the balance of the judgment exceeds the debtor’s interest in the certificate of deposit, it seems appropriate simply to order the garnishee bank to amend the certificate to show the judgment creditor as the sole depositor in fee simple of the entire certificate.

It is ordered that the intervening defendant, National City Bank, Nor-walk, immediately amend certificate of deposit No. 9-33369 to show the depositor to be “Agnes L. Park in fee simple absolute.” It is further ordered that the judgment debtor shall receive credit toward the balance of the judgment against him in the amount of $2,405.72 effective August 5, 1988. The costs' of this garnishment proceeding shall be paid by the judgment debtor, Jay C. Park.

Judgment accordingly.