Dena J. Ulisano v. Frederick Ulisano, III, a/k/a Rick Ulisano and Moredirect, Inc. , 154 So. 3d 507 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DENA J. ULISANO,
Appellant,
v.
FREDERICK ULISANO, III a/k/a RICK ULISANO
and MOREDIRECT, INC.,
Appellees.
No. 4D14-2786
[January 7, 2015]
Appeal of a non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Carlos A. Rodriguez, Judge; L.T. Case
No. 13-025513 CACE (14).
Bryce Gilbert of Gilbert & Caddy, P.A., Hollywood, for appellant.
Allison L. Friedman of Allison L. Friedman, P.A., Aventura, for appellee.
GROSS, J.
We write to address appellant’s claim that the head of family exemption
from a continuing writ of garnishment is not available to debtors residing
out of state. After a 1993 amendment to the applicable statute, the
statutory exemption applies to Florida residents and non-residents alike.
Dena Ulisano (“Creditor”) obtained a final judgment against Frederick
Ulisano III (“Debtor”). To collect on the judgment, Creditor secured the
issuance of a continuing writ of garnishment pursuant to section 77.0305,
Florida Statutes (2013). The writ ordered Debtor’s employer, Moredirect,
Inc., to withhold no more than 25% of the Debtor’s “disposable earnings.”
Debtor timely filed a claim of exemption and request for hearing
pursuant to section 77.041(1), Florida Statutes (2013). Debtor claimed an
exemption as a head of household, since he provided more than one half
support for three dependents: a seven year old child, an eighteen year old
child, and an unemployed spouse. He further stated that his net earnings
exceeded $750 per week, but he had not agreed in writing to have his
wages garnished.
At the hearing on the exemption, Creditor argued that Florida’s head of
household exemption did not apply because Debtor was no longer a Florida
resident. Debtor testified that he had lived in South Carolina for seven
years and that he supported two children and his wife, a stay at home
mother. He said that he was the family’s sole source of income.
The judge dissolved the continuing writ of garnishment, finding that
Debtor qualified for the head of household exemption.
On appeal, Creditor argues that the claim of exemption should not have
been granted because the head of household garnishment exemption does
not apply to non-residents. We reject this contention because Creditor
relies on an outdated version of the statute.
Section 222.11, Florida Statutes (2013), provides a garnishment
exemption for the head of a family. This section exempts the head of
family’s disposable earnings of $750 a week or less from garnishment and
likewise exempts disposable earnings greater than $750 per week, unless
the debtor agrees to waive the protection from garnishment in writing. §
222.11(2)(a)-(b), Fla. Stat. (2013). Since the exemption’s purpose “is to
prevent the families of debtors from becoming public charges,” it should
be liberally construed in favor of the debtor. Killian v. Lawson, 362 So. 2d
1007, 1007 (Fla. 4th DCA 1978). A debtor claiming the head of family
exemption has the burden of proving entitlement to this statutory
exemption. See Brock v. Westport Recovery Co., 832 So. 2d 209, 211 (Fla.
4th DCA 2002). The court looks at the totality of the circumstances to
determine whether the exemption is applicable. Id.In this case, Debtor claimed a “head of family” exemption as a “natural
person who is providing more than one-half of the support for a child or
other dependent.” § 222.11(1)(c), Fla. Stat. (2013). Debtor does not dispute
that he has lived in South Carolina for the past seven years; he correctly
points out that the current version of section 222.11 applies the exemption
to non-residents of Florida.
Prior to 1993, section 222.11 included the following language:
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.
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§ 222.11, Fla. Stat. (1991) (emphasis added). In 1993, the statute was
amended and the requirement that the head of family “resid[e] in this
state” was removed. See Ch. 93-256, § 2, Laws of Fla. The current version
of section 222.11 refers to the “head of a family” without geographical
limitation. In construing section 222.11, “our first obligation is to give the
words used by the legislature their plain meaning.” Mazzella v. Boinis, 617
So. 2d 1156, 1157 (Fla. 4th DCA 1993). By removing the phrase “residing
in this state,” the plain language of the statute applies the exemption to
both non-resident and resident heads of family.
The cases relied upon by Creditor predate the 1993 amendment to the
statute. See Reichenbach v. Chem. Bank of New Jersey, 623 So. 2d 577,
579 (Fla. 3d DCA 1993); In re Szuets, 22 B.R. 805, 806 (M.D. Fla. 1982).
We have considered the remaining issue and find no abuse of discretion
in the trial court’s refusal to enter a default against the Garnishee,
Moredirect, Inc.
Affirmed.
DAMOORGIAN, C.J., and MAY, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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