483 N.E.2d 170 | Ohio Ct. App. | 1984
This is an appeal by the defendant Clifford G. Tallman from a judgment of the Crawford County Municipal Court in a garnishment proceeding initiated by the plaintiff Society National Bank. No transcript of proceedings was filed in the appeal and the critical facts and findings are set forth in the judgment entry of the trial court as follows:
"Plaintiff obtained a judgment against the Defendant arising from a credit card in 1981. On May 20, 1983, Plaintiff filed a garnishment of money, other than personal earnings, to reach funds in a checking account which Defendant and his wife had at the Plaintiff bank. * * *
"* * *
"The Court finds that the funds in the checking account consist of monies from three sources; $180.00 of Defendant's $212.00 paycheck for one week's work, earned within the previous thirty days, deposited one or two days prior to the filing of the garnishment action; an unemployment check deposited May 9, 1983; and $150.00 in funds belonging to the Defendant's wife's brother. Various checks had been written against these funds, and on May 25, when the garnish-[or]-Plaintiff made return, $232.83 was in the account, and was paid into the Court.
"* * *
"The Court finds that there is no notice ever sent Defendant under Ohio Rev. Code
"The Court finds that the funds do not retain a partial exemption once deposited into the checking account.
"The Court does find that the $150.00 was in fact held in trust by Defendant's wife, and neither the wife nor the brother were parties to this action.
"* * *
"The Court orders $150.00 returned to Defendant for the wife's brother and $82.83 delivered to the Plaintiff."
The defendant assigns error of the trial court (1) in permitting the garnishment when the checking account contained funds exempt from garnishment, and (2) in permitting the garnishment of a checking account containing personal earnings of defendant when plaintiff failed to send defendant the notice required by R.C.
Defendant claims, in effect, that the $82.83 returned to the bank consisted partly of monies from his unemployment compensation check exempted from garnishment under the provisions of R.C.
Defendant places his reliance on the Gilardi case, supra, as implemented by the case of Bethesda Hospital v. Wolf, (App. 1979), 11 O.O. 3d 168. However, the former case had to do only with current poor relief and welfare funds, and the conclusion in the latter case that partially exempt personal earnings retain their exemption even though deposited in a checking account with other funds is wholly obiter dicta in a factual situation where the source of the funds cannot be traced and "exempt" funds may not, in fact, be involved in the garnishment. We find theGilardi and Wolf decisions not appropriate to the issue before us and definitely not binding on this court.
In our opinion, though also not binding on this court, the decision of the Akron Municipal Court in Household Finance Corp.
v. Kinder (1982),
"Although there are no cases addressing whether or not compensation retains its character as `earnings' after it has been deposited in the employee's bank account, the Supreme Court has held that income tax refunds are not considered `earnings' within the meaning of the Act even if such funds can be traced to compensation in the form of wages. Kokoszka v. Belford,
"* * * The Social Security Act, * * * to protect from legal process social security payments on deposit in a bank account, has similarly broad language:
"[`] [N]one of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process * * *.[']
In our opinion the rationale of the Usery case and theKokoszka case is equally applicable to Ohio's exemption and garnishment statutes. We find nothing in those statutes dictating a different result. The first assignment of error is, therefore, without merit.
R.C.
Consistent with our conclusion under the first assignment of error that personal earnings which have been voluntarily deposited in a checking account no longer are exempt from garnishment is the associated conclusion that they have lost their character as "personal earnings" once deposited. Such being the case, the giving of a demand or notice in the form provided by R.C.
Judgment affirmed.
MILLER, P.J., and COLE, J., concur.