Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1620 _____________________________ HANCOCK WHITNEY BANK, Appellant, v. JOHN J. ADAMS; ASHLEY M. ADAMS; and WOODLAND BAYOU PROPERTY OWNERS ASSOCIATION, INC., Appellees. _____________________________ On appeal from the Circuit Court for Walton County. Jeffrey E. Lewis, Judge. January 8, 2020 PER CURIAM. Appellant, Hancock Whitney Bank, appeals the trial court’s nonfinal amended order granting Appellee Ashley M. Adams’s claim of exemption from garnishment. * We reverse because Mrs. Adams failed to prove her entitlement to a statutory exemption. * See Fla. R. App. P. 9.130(a)(3)(C)(ii) (authorizing appeals of nonfinal orders that determine “the right to immediate possession of property, including but not limited to orders that grant, modify, BACKGROUND In October 2018, the trial court entered a final deficiency judgment in favor of Appellant, adjudging that it was entitled to recover from Appellees John J. Adams and Mrs. Adams the deficiency balance of $44,176.04 that remained due and owing under a final judgment of foreclosure. In March 2019, Appellant filed a writ of garnishment to Bank of America Corporation, which filed an answer representing that Mrs. Adams had $230.41 in a savings account and $5,480.75 in a checking account. Mrs. Adams filed a claim of exemption, claiming exemption from garnishment under four categories: (1) head of family wages—providing more than half of the support for a child or other dependent and having net earnings of more than $750 per week, but not having agreed in writing to wage garnishment; (2) reemployment assistance or unemployment compensation; (3) retirement or profit-sharing benefits or pension money; and (4) other—IRS refund. Appellant filed the affidavit of its vice president, who attested that Appellant has not received any payments to satisfy or reduce the deficiency judgment and the funds to be garnished are not exempt because they are not traceable to a qualifying source. Mrs. Adams appeared pro se at the evidentiary hearing on her claim of exemption. When she took the stand, the trial court asked her about the status of her divorce proceeding and she indicated that it had not been finalized and she and Mr. Adams had been separated for three years. With regard to her claims of exemption, Mrs. Adams explained that their minor children primarily reside with her and she provides about 75-80% of the financial support for them; she attends school full-time; and “some of those funds” in her account are from a loan she took out for school, an IRS refund, and an IRA withdrawal because she is not receiving any child support. Mrs. Adams is supposed to receive $1,259 per month in court-ordered child support, but Mr. Adams has not paid any of it; he has only paid a purge amount for back child support in August 2018. Mrs. Adams opened the Bank of America savings account for the purge amount Mr. Adams wired into it. Mrs. Adams dissolve, or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment”). 2 deposits into the Bank of America checking account her wages and all other monies she receives, including money she gets from her family. Mrs. Adams works on an as-needed basis, with limited hours, and earns $28 per hour. She took out an unsubsidized federal loan in the amount of $2,600, dated February 11, 2019, that she deposited into her checking account and uses to pay her mortgage. She also deposited into the checking account an IRA check for $2,910.44 on March 12, 2019, and an IRS refund check for $5,555 around mid-March of 2019. She is not receiving unemployment benefits yet. Appellant argued that Mrs. Adams failed to meet her burden of proving the claimed exemptions and provided only self-serving testimony and some documentary evidence that showed she commingled nonexempt funds such as the IRS refund and student loan with any exempt funds and “[t]here’s been no statements provided. There’s been no tracing of the funds.” Mrs. Adams replied that she did not know she needed to bring statements and added, “if you take away the IRS check that went in there, I had - - it was my balance that was - - that was frozen on that day. I have like $400 left in there. That’s my income.” The court stated, “I’m familiar. I have an order on my desk right now for back support which is a six-figure amount . . . .” The court then announced its ruling as follows: I’m going to sustain the head of household objection -- exemption for Mrs. Adams. I’m familiar with -- with the circumstances and, except for that one purge, which was actually proceeds from -- from an insurance policy, as I recall -- or partially -- . . . it was a lost payment back, but it was -- it was designated to be back child support she hadn't received. She proved to me she had not been receiving any support or any substantial support in accordance with the earlier ruling. And notwithstanding the fact that -- that she didn't differentiate between those, I'm satisfied that if you -- if you looked at the continuum of -- of the years, just having [p]resided over this matter myself for over two years now, the amount that you would be able to attribute as income as opposed to what would be attributable as support would be miniscule as income and almost meaningless to try to -- try to calculate. 3 I realize that may not work to a strict compartmental, but I just know in equity and fairness, Ms. Adams is not in a position to -- she just doesn't have that kind of income anymore. She's been struggling without receiving any child support. Accordingly, the trial court entered an amended order granting Mrs. Adams’s claim of exemption and dissolving the continuing writ of garnishment. This appeal followed. ANALYSIS “The classification of monies sought in a garnishment proceeding ‘is a question of statutory interpretation that is reviewed de novo.’” Kane v. Stewart Tilghman Fox & Bianchi, P.A., 197 So. 3d 137, 141 (Fla. 4th DCA 2016) (quoting Baker v. Storfer, 51 So. 3d 652, 653 (Fla. 4th DCA 2011)); see also Hart v. Wachovia Bank, Nat’l Ass’n, 159 So. 3d 244, 245 (Fla. 1st DCA 2015). “Every person or entity who has sued to recover a debt or has recovered judgment in any court against any person or entity has a right to a writ of garnishment, in the manner hereinafter provided . . . .” § 77.01, Fla. Stat. (2018). Chapter 222, Florida Statutes, sets forth numerous exemptions from garnishment. The party claiming an exemption from garnishment has the burden of proving entitlement to the exemption.” Kane, 197 So. 3d at 141. Section 222.11(2), Florida Statutes (2018), exempts from garnishment “[a]ll of the disposable earnings of a head of family whose disposable earnings are less than or equal to $750 a week” and the “[d]isposable earnings of a head of a family, which are greater than $750 a week, . . . unless such person has agreed otherwise in writing.” “‘Earnings’ includes compensation paid or payable, in money of a sum certain, for personal services or labor whether denominated as wages, salary, commission, or bonus.” § 222.11(1)(a), Fla. Stat.; see § 222.11(1)(b)-(c), Fla. Stat. (defining “[d]isposable earnings” as “that part of the earnings of any head of family remaining after the deduction from those earnings of any amounts required by law to be withheld” and defining “[h]ead of family” as including “any natural person who is providing more than one-half of the support for a child or other dependent”). The statute further provides: 4 Earnings that are exempt under subsection (2) and are credited or deposited in any financial institution are exempt from attachment or garnishment for 6 months after the earnings are received by the financial institution if the funds can be traced and properly identified as earnings. Commingling of earnings with other funds does not by itself defeat the ability of a head of family to trace earnings. § 222.11(3), Fla. Stat. This exemption is to be liberally construed in favor of the debtor because its purpose “is to prevent the families of debtors from becoming public charges.” Ulisano v. Ulisano, 154 So. 3d 507, 508 (Fla. 4th DCA 2015) (internal citation omitted). At the hearing, the trial court sustained the head of family wages exemption, thereby implicitly denying the remaining claimed exemptions. We agree that Mrs. Adams is not entitled to the claimed exemptions of unemployment compensation, retirement benefits, and IRS refund. Mrs. Adams testified that she is not receiving unemployment benefits yet, and chapter 222 does not provide an exemption for IRS refunds. With regard to retirement benefits, Mrs. Adams testified only that she withdrew from an IRA $2,910.44 and she deposited it into her checking account on March 12, 2019. The record contains no information about the IRA or what, if any, portion of the $5,480.75 in the checking account is attributable to the money taken from it. See In re Yerian, 927 F.3d 1223, 1228-29 (11th Cir. 2019) (“Section 222.21 of the Florida Statutes imposes different exemption requirements on different IRAs, depending on whether and how the Internal Revenue Service has signed off on the IRA’s terms. Section 222.21(2)(a)(1) applies if the IRA’s terms have been ‘preapproved by the Internal Revenue Service as exempt from taxation.’ Section 222.21(2)(a)(2) applies if the IRA’s terms have been ‘determined by the Internal Revenue Service to be exempt from taxation.’ And if the IRS has neither preapproved nor determined that the IRA’s terms comply with the tax code, the debtor must seek an exemption under section 222.21(2)(a)(3).”); see also § 222.21(2), Fla. Stat. (2018). Moreover, we find that the trial court erred by sustaining the claim for head of family wages exemption. Mrs. Adams’s savings 5 account does not contain her earnings; she testified it consists of a portion of the purge amount Mr. Adams paid in back child support. Mrs. Adams further testified that she earns $28 per hour and works limited hours and that she deposits her income into the checking account, along with all other monies she receives, including money from her family, student loan, and IRS refund. Mrs. Adams indicated that the majority of the funds in the checking account is from the IRS refund. IRS refunds are not wages subject to exemption under section 222.11. Matter of Truax, 104 B.R. 471, 472 (Bankr. M.D. Fla. 1989); see also In re Lancaster, 161 B.R. 308, 309 (Bankr. S.D. Fla. 1993). Additionally, Mrs. Adams did not trace and identify the commingled funds in the checking account as earnings as required under section 222.11(3). In announcing its ruling at the hearing, the trial court seemed to recognize the lack of proof in that regard, but nevertheless granted the exemption “in equity and fairness” because Mrs. Adams “[has] been struggling without receiving any child support.” Chapter 222 does not provide for an “equity and fairness” exemption. CONCLUSION Therefore, we are constrained to reverse the challenged order because Mrs. Adams did not meet her burden of proving that any statutory exemption to garnishment applies. REVERSED. LEWIS, WINOKUR, and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Robert S. Rushing and Travis M. Morock of Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, LLC, for Appellant. No appearance for Appellees. 6