Martinez v. golisting.com ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed November 22, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-1906
Lower Tribunal No. 99-15258
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Alvaro Martinez, Jr., M.D.,
Appellant,
vs.
Golisting.com, Inc., d/b/a
Palm Beach Premier Real Estate, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Pedro P.
Echarte, Jr., Judge.
Barry S. Franklin & Associates, P.A., and Barry S. Franklin, for appellant.
Padula Bennardo Levine, LLP, and Stephen J. Padula (Boca Raton), and
Joshua S. Widlansky (Boca Raton), for appellee Golisting.com, Inc.
Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
LINDSEY, J.
A former husband appeals an order finding a continuing writ of garnishment
filed to collect on a final judgment against his former wife for attorney’s fees
incurred in post-dissolution litigation void ab initio. We agree with the trial
court’s finding and, for the reasons set forth below, affirm.
The marriage between Alvaro Martinez, Jr. (“former husband”) and Gia
Martinez (“former wife”) was dissolved in 2000. For almost a decade thereafter,
the parties continued to remain embroiled in contentious litigation over issues
including child custody and time sharing arrangements, parental responsibility and
decision-making authority, health care, and school registration. In May of 2010,
the trial court, having found the former husband entitled to attorney’s fees incurred
in litigating these issues, entered a final money judgment in the amount of
$37,081.00 plus statutory post-judgment interest accruing from April 21, 2010, the
date of the court’s order awarding post-judgment attorney’s fees.
Three years later, in furtherance of the former husband’s efforts to collect on
this final judgment, a continuing writ of garnishment against salary or wages
(“continuing writ”) was entered against the former wife’s employer,
Golisting.com, Inc. (“Garnishee”). The Garnishee filed an answer stating it
employs the former wife at an annual salary of $30,000.00 and acknowledging
that, in an abundance of caution, $453.86 of her wages per month are subject to
garnishment. The former husband then filed a reply denying that the former wife
was a mere salaried employee and stating that her pay structure was changed solely
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to minimize his collection efforts. Thereafter, the Garnishee filed an amended
answer, noting an additional withholding.1 The former husband filed a reply to the
amended answer, asserting that commissions and any other pecuniary benefits
received by the former wife constituted wages subject to the continuing writ. The
Garnishee kept the withholdings in a trust account. Three years after the
continuing writ was issued, the Garnishee filed a motion entitled, Motion to
Dismiss and/or Dissolve the Continuing Writ of Garnishment or, in the
Alternative, Notice of Dissolution of the Continuing Writ of Garnishment (“motion
to dismiss and/or dissolve”): (1) seeking dissolution of the continuing writ; (2)
awarding the Garnishee entitlement to its reasonable attorney’s fees and costs from
the garnished funds; (3) allowing the Garnishee to return all remaining garnished
funds (after fees and costs) to the former wife; and (4) setting a limited hearing on
the amount of the Garnishee’s attorney’s fees and costs.
The former husband then filed a motion for summary judgment on the
Garnishee’s amended answer asserting that the former husband is entitled to a
continuing writ of garnishment until the amount in question is paid in full because
the fees are in the nature of support and subject to the court’s full contempt power
and seeking attorney’s fees pursuant to section 57.115, Florida Statutes (2016).
The Garnishee filed a response in opposition, claiming that the judgment which
1The former wife received raises, which increased the monthly withholding by the
Garnishee.
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forms the basis of garnishment is not in the “nature of support,” and thus a
continuing writ of garnishment is not available to the former husband.
The former husband also filed a response in opposition to the Garnishee’s
motion to dismiss and/or dissolve, contending that the Garnishee’s argument that
the attorney’s fees debt is not in the nature of support is a red herring, but claiming
that even so, the continuing writ was proper because the nature of the attorney’s
fees debt is indisputably for purely child related fees. The former husband further
contended that the Garnishee’s argument for attorney’s fees and costs fails because
the Garnishee is not a purely “innocent stakeholder,” and is, in effect, the “alter
ego” of the former wife. Lastly, the former husband asserted that the Garnishee
incurred unauthorized fees and failed to follow the court’s order (the continuing
writ) and remit any funds garnished from the former wife to the former husband.
After a final evidentiary hearing, the trial court entered an order granting the
Garnishee’s motion to dismiss and/or dissolve, denying the former husband’s
motion for summary judgment and finding that the continuing writ was void ab
initio. This appeal follows.2
2 Upon the filing of this appeal, this Court, sua sponte, issued an order to show
cause as to why this appeal should not be dismissed on the basis that the order on
appeal is not final. In response, the former husband cited to the current version of
Rule 9.130(a)(3)(C)(ii) which allows for review of non-final orders that determine
“the right to immediate possession of property, including but not limited to orders
that grant, modify, dissolve or refuse to grant, modify, or dissolve writs of
replevin, garnishment, or attachment[.]” Fla. R. App. P. 9.130(a)(3)(C)(ii). In
2008, Subdivision 9.130(a)(3)(C)(ii) was amended to address a conflict in the case
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We review de novo orders construing statutes such as those controlling
garnishment. Marquez v. Bluecare Home Health Svcs., 116 So. 3d 563, 565 (Fla.
3d DCA 2013); Arnold, Matheny & Eagan, P.A. v. First Am. Holdings, Inc., 982
So. 2d 628, 632 (Fla. 2008) (emphasis added) (“Because the issue requires this
Court to interpret the statutory provisions of Florida garnishment law, we apply a
de novo standard of review.”). The standard of review of a summary judgment
order is de novo and requires viewing the evidence in the light most favorable to
the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000).
Garnishment proceedings are governed by statute and must be strictly
construed. Marquez, 116 So. 3d at 565 (citing Williams v. Espirito Santo Bank of
Fla., 656 So. 2d 212, 213 (Fla. 3d DCA 1995)). “The cardinal rule of statutory
construction is ‘that a statute should be construed so as to ascertain and give effect
law concerning whether orders granting, modifying, dissolving, or refusing to
grant, modify, or dissolve garnishments are appealable under this subdivision. See
Committee Notes to In re Amendments to the Fla. Rules of Appellate Procedure, 2
So. 3d 89, 93 (Fla. 2008) (noting conflicting authorities in Ramseyer v.
Williamson, 639 So. 2d 205 (Fla. 5th DCA 1994) (garnishment order not
appealable) and 5361 N. Dixie Highway v. Capital Bank, 658 So. 2d 1037 (Fla. 4th
DCA 1995) (permitting appeal from garnishment order and acknowledging
conflict)); Fla. R. App. P. 9.130(a)(3)(C)(ii), committee notes (2008 amend.)
(same). Accordingly, the rule to show cause is dismissed. See Higgins v. Ryan,
81 So. 3d 588, 589 (Fla. 3d DCA 2012) (alteration in original) (dismissing appeal
of a non-final order determining the respective percentages of ownership of three
individuals in a corporate entity, but noting that Rule 9.130(a)(3)(C)(ii) allows for
review of non-final orders that determine “the right to immediate possession of
property, including but not limited to orders that grant, modify, dissolve or refuse
to grant, modify, or dissolve writs of replevin, garnishment, or attachment[.]”).
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to the intention of the Legislature as expressed in the statute.’” Reeves v. State,
957 So. 2d 625, 629 (Fla. 2007) (citing City of Tampa v. Thatcher Glass Corp.,
445 So. 2d 578, 579 (Fla. 1984)). Furthermore, “courts must construe statutes to
give each word effect, without limiting the statute's words or adding words not
placed there by the legislature.” Miami Stage Lighting v. Budget Rent-A-Car
Sys., 712 So. 2d 1135, 1137 (Fla. 3d DCA 1998) (emphasis added) (citing, among
others, Reyf v. Reyf, 620 So. 2d 218 (Fla. 3d DCA 1993)). Florida courts are
without power to construe an unambiguous statute in a way that would extend,
modify, or limit its express terms or its reasonable and obvious implications
because to do so would be an abrogation of legislative power. Holly v. Auld, 450
So. 2d 217, 219 (Fla. 1984); Akerman Senterfitt & Eidson, P.A. v. Value Seafood,
Inc., 121 So. 3d 83, 87 (Fla. 3d DCA 2013) (refusing to extend the express terms
of the version of section 77.07(5) in effect in 2012 because to do so would be to
read language into the statute that is simply not there).
This case originally began as a proceeding for dissolution of marriage. This
appeal originates from a final judgment awarding attorney’s fees to the former
husband which he incurred litigating post-dissolution issues related to custody,
time sharing and parental responsibility. Before the court is whether a continuing
writ of garnishment is available as a remedy to the former husband to collect on his
final judgment for attorney’s fees. Chapter 61 of the Florida Statutes, entitled,
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“Dissolution of Marriage; Support; Time-sharing,” provides the statutory
framework for resolution of this issue.
Section 61.12, Florida Statutes (2017) is titled, “Attachment or garnishment
of amounts due for alimony or child support.” Section 61.12(1) provides for
“garnishment to enforce and satisfy the orders and judgments of the courts of this
state for alimony, suit money, or child support . . . .” However, while subpart (1)
of the statute addresses garnishment, only subpart (2) authorizes a continuing writ
of garnishment, “which is a remedy separate and distinct from a writ of
garnishment.” Reyf, 620 So. 2d at 219 (citing Vetrick v. Hollander, 566 So. 2d
844 (Fla. 4th DCA 1990)). Section 61.12(2) provides as follows:
The provisions of chapter 77 or any other provision of
law to the contrary notwithstanding, the court may issue
a continuing writ of garnishment to an employer to
enforce the order of the court for periodic payment of
alimony or child support or both. The writ may provide
that the salary of any person having a duty of support
pursuant to such order be garnisheed on a periodic and
continuing basis for so long as the court may determine
or until otherwise ordered by the court or a court of
competent jurisdiction in a further proceeding. Any
disciplinary action against the employee by an employer
to whom a writ is issued pursuant to this section solely
because such writ is in effect constitutes a contempt of
court, and the court may enter such order as it deems just
and proper.
§ 61.12(2), Fla. Stat. (2017) (emphasis added).3 Thus, while subpart (2) states that
3In 1977, the existing section 61.12 was designated as subpart (1) and subpart (2)
was added. Ch. 77-26, § 1, at 40, Laws of Fla. The preamble of that enactment,
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a continuing writ of garnishment is available to collect alimony or child support or
both, there is no reference to suit money or attorney’s fees in subpart (2). See
Reyf, 620 So. 2d at 219.
In Reyf, after a final judgment was entered against the former husband for
attorneys’ fees, the former wife sought to obtain a continuing writ of garnishment
under section 61.12(1), Florida Statutes (1991),4 against the former husband's
salary to satisfy the judgment. 620 So. 2d at 219. In affirming the trial court’s
refusal to issue the continuing writ, this Court stated: “We must interpret Section
61.12 as a whole, and in such a way as to give meaning to both of its constituent
subparts.” Id. (citing State v. Hayles, 240 So. 2d 1 (Fla. 1970); Greenhut Constr.
Co. v. Henry A. Knott, Inc., 247 So. 2d 517 (Fla. 1st DCA 1971)). As such, this
Court “conclude[d] that a continuing writ of garnishment is not available under
Section 61.12 to satisfy a final judgment for attorneys' fees ancillary to a
dissolution action.” Id. (emphasis in original). Subsequently, in Sachs v. Sachs,
this Court reversed a trial court’s non-final order entered after final judgment
granting a continuing writ of garnishment against one former spouse’s wages
describing it as “[a]n act relating to child support; amending s. 61.12, Florida
Statutes, to provide that a court may issue a continuing writ of garnishment to
enforce the periodic payment of child support; providing an effective date,”
expressly states the purpose of the amendment. Ch. 77-26, § 1, at 40, Laws of Fla.
(emphasis added). In 1978, the Legislature added “alimony” to subpart (2). Ch.
78-63, § 1, at 86, Laws of Fla.
4 The current version of section 61.12 has not changed since 1991.
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solely for the collection of the other former spouse’s attorney’s fees. 623 So. 2d
640 (Fla. 3d DCA 1993) (per curiam) (reversing the order on authority of Reyf).
In conclusion, section 61.12 limits the remedy of a continuing writ of
garnishment to alimony or child support in proceedings under Chapter 61.
Whether attorney’s fees were incurred litigating child related issues is irrelevant to
the analysis because attorney’s fees are neither alimony nor child support. Here,
the former husband sought a continuing writ of garnishment to satisfy a final
judgment for attorney’s fees incurred in post-dissolution litigation. In order to
prevail, he would have to persuade this Court to recede from, and overturn, our
decision in Reyf and extend the express language of section 61.12(2) to section
61.12(1). We decline to do so.
Affirmed.
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