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Author johnbsims3
Admin Male

#1 | Posted: 27 Nov 2006 19:55 


Purpose of statute providing that no process shall issue when it is sought to attach money or other thing due for personal labor or services of a head of the family is to relieve the family of wage earners from expense and hardship which would result when payment of earnings due breadwinner of the family are either delayed or impounded by judicial process. F.S.A. 77.03
Noland Co. v. Linning, 132 So.2d 802 (Fla. 1st DCA 1961)

Statute providing that when levy is made by writ of execution the debtor shall make inventory of the whole of his personalty as exempt from sale merely provides method for implementing organic constitutional right of head of household to exemption of $1,000 worth of personalty from forced sale under process of any court and does not abridge the constitutional provision. F.S.A. 222.06, F.S.A. Const. Art 10, s.1.
Azar v. Graham, 194 So.2d 684 (Fla. 3rd DCA 1967), certiorari discharged 204 So.2d 193.

Under Florida law, in order to qualify as a head of a family for purposes of bankruptcy exemptions, there must be at least two persons living together in relation of one family and one of them must be the head of family. F.S.A> Const. art 10, s.4.
For purposes of determining whether a debtor or a head of family under Florida law and thus entitled to a bankruptcy exemption, there must be a legal or moral obligation to discharge the duties of head of family and support by itself is not determinative.
Under Florida law, an able-bodied husband cannot abdicate his presumptive position as head of the family, for bankruptcy exemption purposes, and as long as the family relationship remains intact, the husband is deemed to be head of family unless he is unable to discharge his duties due to permanent illness, incarceration or mental incompetence.
Under Florida law, a married woman who supports a dependent of other persons is not head of a family, for bankruptcy purposes, so long as the relationship of husband and wife remains intact.
Under Florida law, a married woman may be head of a family under certain conditions during the existence of a marriage; however, there is a presumption that the husband is the head of a family, for bankruptcy exemption purposes.
Under Florida law, even though debtor earned more that her husband, she did not qualify to be head of a family unit consisting of herself and her husband and, therefore, her exemption claim could not be recognized.
Matter of Barnes, 4 B.R. 600 (Bkrtcy. M.D. Fla. 1980)

Under Florida law, determination of whether legal status as head of a household exists depends upon whether the person asserting that status has a legal or moral duty to support, care for, and train members of the family group. F.S.A. 222.01 et seq.; F.S.A. Const. Art 10, s.4.
In re Gurtler, 30 B.R. 233 (Bkrtcy. S.D. Fla. 1983)

There cannot be more than one head of a family for exemption purposes, when family is living together in one household and, although married woman may be head of household for exemption purposes, when man and woman are legally married and marital relationship is intact, there is presumption that husband is head of household. F.S.A. 222.20; F.S.A. Const. Art. 10, s.4.
In re Schachne, 6 B.R. 236 (Bkrtcy. S.D. Fla. 1980)

Debtor was not entitled to claim exemption on basis that he was head of family by providing principal means of support for his mother, with whom he lived, in light of fact that debtor paid his mother approximately $500 per month, out of that sum she paid car payment of approximately $220 on 1981 automobile, which debtor used exclusively, and from remaining amount, debtor's mother paid additional expenses for debtor's benefit. F.S.A. Const. Art. 10., s.4.
In re Bennett, 15 B.R. 136 (Bkrtcy. S.D. Fla. 1981)

The wage exemption provided by Florida statute was designed to protect wages of residents and citizens of Florida and not wages earned by one who at the time relevant was not a resident and citizen of Florida and whose wages were not paid by a Florida employer. F.S.A. 222.11
Matter of Szuets, 22 B.R. 805 (Bkrtcy. M.D. Fla. 1982)

Florida only recognizes state law exemptions and nonbankruptcy federal law exemptions. F.S.A. 222.20.
In re Himmelstein, 203 B.R. 1009 (Bkrtcy. M.D. Fla. 1996)

Under Florida wildcard exemption for "personal property to the value of one thousand dollars," it is the individual claming exemption who is entitled to determine what items of personal property to exempt. F.S.A. Const. Art. 10, s.4.
Chapter 7 debtor whose equity in motor vehicle exceeded, by just about $600, the $1,000 motor vehicle exemption accorded to debtors under Florida statute could utilize constitutional wildcard exemption for "personal property to the value of one thousand dollars," in order to exempt his remaining equity in vehicle; statutory and constitutional exemptions were not mutually exclusive, but could be combined by debtor in order to claim more than a $1,000 exemption in his shortbed truck.
Under Florida wildcard exemption for "personal property to the value of on thousand dollars," any type of personal property may be exempted, provided that the value does not exceed $1,000.
In re Rutter, 247 B.R. 334 (Bkrtcy. M.D. Fla. 2000)

For purpose of provision in Florida Constitution exempting personal property to value of $1,000 from forced sale or judgment lien, "personal property" can include cash." F.S.A. Const. Art 10, s.4.
Schlosser v. State, 602 So.2d 628 (Fla. 2nd DCA 1992)

Under Florida wage exemption statute, earnings from business controlled by debtor are not exempt.
Under Florida wage exemption statute, debtor must show that compensation qualifies as earnings from personal services. F.S.A. 222.11.
In re Zamora, 187 B.R. 783 (Bkrtcy. S.D. Fla. 1995)

Since purpose of exemption statutes is to protect not only husband but also his family from destitution, such statutes will not, unless contrary intention is clearly shown, be construed to enable husband to claim its benefit against very persons to whom he owes obligation of support and maintenance.
Anderson v. Anderson, 44 So.2d 652 (Fla. 1950)

Protection and enforcement of rights
s.105 Establishment of right of exemption in general.
Procedure established by garnishment statute for asserting head of household exemption is entitled to great deference from the courts.
F.S.A. 222.12.
Cadle Co. v. G & G Associates, 737 So.2d 1136, rehearing denied, appeal after remand 741 So.2d 1257.

s.110 Garnishment
Statute providing that no process shall issue when it is sought to attach money due for personal labor or services of head of the family residing in the state, imposed a mandatory duty on a court to refrain from issuing a writ of garnishment where it was not first made to appear by sworn averments of the judgment creditor that the money sought to be garnisheed was not due for the personal labor or services of a head of a family residing in the state. F.S. 77.03, 222.11.
Noland Co. v. Linning, 132 So.2d 802 (Fla. 1st DCA 1961)

s.127 Contest and determination of claim
Evidentiary hearing was required before court could determine whether Chapter 7 debtor, a self employed, licensed insurance broker, earned renewal commissions from insurance policies previously sold by debtor as independent contractor or as compensation for labor or personal services, as required for application of Florida statute exempting earnings of head of family that are compensation for labor or personal services; it was not clear from record at what point debtor became broker as opposed to "captive agent", and whether renewal commissions at issue were generated by policies that debtor sold as "captive agent" or as independent broker, or combination of two, and it was unclear extent to which debtor serviced insurance contracts beyond what was minimally required to secure renewals and whether renewals were typically automatic. F.S.A. 222.11
In re Lee, 190 B.R. 953 (Bkrtcy. M.D. Fla. 1995)

Statutory provision requiring that if facts contained in affidavit claiming exemption are not timely denied under oath, writ of garnishment shall be returned and all proceedings under it shall cease must be strictly construed in favor of debtor. F.S. 222.12.
Miami Herald Pub. Co. v. Payne, 358 So.2d 541 (Fla. 1978), opinion adopted 360 So.2d 122.

When wife filed motion for continuing writ of garnishment, but failed to deny former husband's head of family affidavit within two days after his notice was served on her, continuing writ should have been returned to her and all garnishment proceedings should have ceased. F.S. 77.0305, 222.11, 222.12.
Vetrick v. Hollander, 566 So.2d 844 (Fla. 4th DCA 1990)

All proceedings under writ of garnishment for amount due from former husband for child support terminated by operation of law upon expiration of time for former wife's filing of sworn denial of former husband's affidavit of exemption on ground that he was head of a family residing within Florida and that wages to be garnished were due for his personal labor and services, notwithstanding fact that final judgment of dissolution of marriage which provided for child support was otherwise subject to enforcement by garnishment. F.S. 222.11, 222.12.
Schwarz v. Waddell, 389 So.2d 210, (Fla. 4th DCA 1980) quashed, cause remanded 405 So.2d 978, on remand 422 So.2d 61, petition for review denied 434 So.2d 889.

End of s.127

Equity has complete jurisdiction over homestead and exemptions. F.S.A. Const. Art. 10, sections 1,2.
Hillsborough Inv. Co. v. Wilcox, 13 So.2d 448, 152 Fla. 889

Equity was authorized to assume jurisdiction in suit by judgment creditor to restrain sale, in mortgage foreclosure suit, of personal property described in judgment debtor's inventory where debtor claimed exemption. F.S.A. Const. Art 10; F.S.A. 222.06
Shollar Crate & Box Co. v. Passmore, 4 So.2d 530 (Fla. 1941), 148 Fla. 466.

s.147 Pleading

In garnishment proceeding, whether judgment debtor is head of family residing in Florida is a question of fact be alleged and proved, as respects debtor's right to an exemption. F.S.A. Const, Art. 10.
Tracy v. Lucik, 189 So. 430, 138 Fla. 188 (Fla. 1939).

The garnishor has two days from the date of service to deny the allegations, of garnishee claiming he is exempt from garnishment under head of family exception, by contravening affidavit. F.S. 222.12
Should the garnishor fail to timely file a sworn statement disputing facts alleged to support a creditor's exemption as head of family, all proceedings under the writ must cease. F.S. 222.12
Hill v. Haywood, 735 So.2d 539 (Fla. 2nd DCA 1999), rehearing denied, review dismissed 751 So.2d 50.

s.148 Evidence

Under Florida law, it is generally assumed that debtor is honest, and entitled to benefit of exemption, unless and until the contrary is proven.
In re Lazin, 221 B.R. 982 (Bkrtcy. M.D. Fla. 1998)

Chapter 7 debtor proved that household goods were exempt under Florida law as tenancy by the entireties property; debtor testified that goods were purchased with funds from joint account that he and wife held as tenants by the entireties and that goods were intended to be owned as tenants by the entireties.
In re Allen, 203 B.R. 786 (Bkrtcy. M.D. Fla. 1996)

Burden is on objecting party to show that party claiming exemption is not entitled to it.
In re Brown, 165 B.R. 512 (Bkrtcy. M.D. Fla. 1994)

Debtor would not be denied the $1,000 personal property exemption granted by Florida Constitution, on ground that value of personal property at issue exceeded this $1,000 cap, where creditors objecting to exemption failed to put forth any evidence as to value of assets. Fla. Const. Art. 10, s. 4(a)(2).
In re Rightmyer, 156 B.R. 690 (Bkrtcy. M.D. Fla. 1993)

Party objecting to claimed exemption has burden of proving that claim is improper.
In re Sanders, 72 B.R. 124 (Bkrtcy. M.D. Fla. 1987)

Party objecting to a Florida exemption must prove by a preponderance of the evidence that the debtor harbored the requisite fraudulent intent, which may be inferred from extrinsic evidence.
In re Simms, 243 B.R. 156 (Bkrtcy. S.D. Fla. 2000)

No presumption arises merely from character or use of personal property that it is held as estate by entireties rather than as tenancy in common for purpose of exemption in bankruptcy; rejecting Hagin v. Hagin, 353 So.2d 949, Bankr. Code. 11 U.S.C.A. s. 522(b)(2)(B).
Debtor's testimony that he and his wife were both employed at time that household goods and furnishings were purchased, that property was bought for their joint use with their joint earnings and that debtor considered property to be jointly owned with his wife was insufficient to establish that household goods and furnishings were exempt, as against bankruptcy trustee, as estate by entirety held jointly with wife, who was not debtor.
In re Marchini, 45 B.R. 187 (Bkrtcy. S.D. Fla. 1984)

Where there was no evidence that husband considered debtor head of their family, where debtor's own testimony in totality seemed to indicate that she did not view herself as head of whole family, and where evidence did not demonstrate that her share of income from family business was sufficient to or did support herself and children, debtor failed to overcome presumption that husband was head of family so as to be entitled to head of household bankruptcy exemption. F.S. 222.20, Fla. Const. Art. 10, s.4.
In re Schachne, 6 B.R. 236 (Bkrtcy. S.D. Fla. 1980)

In action by former wife seeking to garnish former husband's wages to satisfy judgment she had obtained against former husband for unpaid child support, when former husband moved to dissolve garnishment and filed affidavit of exemption alleging that he was head of family, and thus, that his wages were exempt from garnishment, former wife was required to file controverting affidavit. F.S. 222.11, 222.12.
Former wife's failure to file controverting affidavit merely operated as admission of facts alleged in former husband's affidavit, which claimed garnishment exemption of statute governing exemption of wages from garnishment, and did not preclude trial court's consideration of whether statute governing garnishment of amounts due for child support superceded statute governing exemption of wages from garnishment as matter of law in these circumstances. F.S. 222.11, 222.12.
Sokolsky v. Kuhn, 386 So.2d 806 (Fla. 1st DCA 1980), quashed, cause remanded 405 So.2d 975.

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