Ginsberg v. Goldstein, 80-2322

• Decision Date: 06 October 1981
• Docket Number: No. 80-2322,80-2322
• Citation: 404 So.2d 1098
• Parties: Felice GINSBERG, Appellant, v. Charlotte GOLDSTEIN, f/k/a Charlotte Ginsberg and Burton Ginsberg, Appellees.
• Court: Florida District Court of Appeals

Page 1098

404 So.2d 1098

Felice GINSBERG, Appellant, v. Charlotte GOLDSTEIN, f/k/a Charlotte Ginsberg and Burton Ginsberg, Appellees.

No. 80-2322.

District Court of Appeal of Florida, Third District.

Oct. 6, 1981.

Rehearing Denied Nov. 4, 1981.

Linet, Rovenger & Perkins, North Miami Beach, Joseph P. Averill, Miami, for appellant.

Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and Kendall B. Coffey, Miami, for appellees.

Before BARKDULL, SCHWARTZ and FERGUSON, JJ.

SCHWARTZ, Judge.

This is the latest chapter in the continuing saga, which by now more than passingly resembles Jarndyce and Jarndyce, of Charlotte Ginsberg Goldstein's attempts to collect upon a judgment for past-due alimony which was rendered over two decades ago, on July 26, 1961. ¹ In 1979, the ex-Mrs. Ginsberg located and garnished a $2,005.38 checking account in the name of Burton Ginsberg in the Second National Bank of North Miami Beach. Burton asserted in defense that $1,500 of that amount ² belonged not to him, but to his present wife, Felice, and Felice duly filed a claim to that effect in the garnishment proceeding pursuant to Section 77.16(1), Florida Statutes (1979). The basis of their joint contention was that the $1,500 sum was the proceeds of an Allstate Insurance Company draft in payment on an insurance claim for a valuable statue which had been given to and was owned by Felice when it was stolen from her and Burton's home. Supported by unrebutted affidavits to this effect by Felice; Burton; the donor of the statue, Burton's brother, Daniel Ginsberg; and the insurance adjustor who had secured the issuance of the draft, Felice moved for summary judgment awarding the $1,500 to her. On the basis of the likewise undisputed facts that the judgment debtor, Burton, was the only named insured of the policy in question, the sole payee of the insurance check, and the sole and unqualified holder of the account into which the draft was deposited, Charlotte also sought an order directing the bank to pay her the entire contents of the account. The trial judge ruled that while he thought the "equities" were with Felice, the law was with Charlotte, and entered judgment in her favor. He expressed the hope that this court would reverse his decision. We indulge that desire on the basis of our conclusions that the legal right to garnished property turns upon its equitable ownership and that Felice in fact owns the $1,500 now in dispute.

In accordance with the basic principle of garnishment that a plaintiff merely stands in the shoes of the judgment debtor, see Howe v. Hyer, 36 Fla. 12, 17 So. 925 (1895); Barsco, Inc. v. H.W.W., Inc., 346 So.2d 134 (Fla. 1st DCA 1977), it is universally held that property which is not actually and in "good conscience" deemed to be owned by the debtor may not be secured by the judgment creditor. 38 C.J.S. Garnishment § 71 (1943); 6 Am.Jur.2d Attachment and Garnishment § 92 (1963). This rule is directly applicable to the bank deposit situation before us. Even though, as here, the debtor holds a general account in his own name, thus creating a simple creditor-debtor relationship between him and the bank, Camp v. First National Bank of Ocala, 44 Fla. 497, 33 So. 241 (1902), and a concomitant obligation by the bank to pay out the funds at his direction, Aronson v. First Savings & Trust Co. of Tampa, 139 Fla. 240, 190 So. 524 (1939), the depositor's creditor is not entitled to the money if it is actually owned by somebody else. Instead, the somebody else is. E.g., Susman v. Exchange National Bank of Colorado Springs, 117 Colo. 12, 183 P.2d 571, 573-74 (1947). As is accurately stated, based on the cases collected, at 38 C.J.S. Garnishment § 80 (1943):

Funds of defendant on deposit in a bank are subject to garnishment in the absence of special circumstances creating an exemption. However, the garnishing creditor can reach funds of the depositor only in cases where the depositor is the true owner thereof.

For the purposes of garnishment a bank deposit prima facie belongs to the person in whose name it stands, the general test being whether, but for the garnishment, the deposit would be subject to defendant's check, or whether defendant could sue the bank therefor in debt or assumpsit. These considerations, however, are not conclusive, and the fact that the depositor can withdraw or maintain an action for the deposit does not in all cases render the deposit subject to garnishment at the instance of a creditor of the depositor.

Deposit in defendant's name of money of another. Money of another deposited by a debtor in his own name cannot be reached by garnishment as the property of such debtor. ³ ) This rule is based on the doctrine that in garnishment the equitable title to the property sought to be reached will prevail over the bare legal title, and is especially applicable to deposits of trust funds, and deposits by agents and public officers. However, it has been held that a deposit which amounts to a conversion by the depositor may be reached as his property. (e.s.)

Accord, 6 Am.Jur.2d Attachment and Garnishment § 162 (1963), and cases cited. In at least one instance, Gladden v. Columbiana Savings Bank, 29 Ala.App. 97, 193 So. 185 (1939), cert. denied, 238 Ala. 648, 193 So. 187 (1939), this doctrine has been applied to recognize a claim, like Felice's, of the wife of the debtor to a general account standing in his name. At 193 So. 185, 186, the court held

It is true that when Mack D. Messer, appellant's 'judgment debtor' in this case, deposited the money in appellee's bank to his individual credit the deposit standing in the name of 'Mack D. Messer, Agent' (Gladden v. Columbiana Sav. Bank, 235 Ala. 541, 543, 180 So. 548) that fact, without more, showed prima facie, that it belonged to him, but not conclusively so. If it really belonged to his wife, the fact that her husband, to whom she entrusted it, deposited it in (the) bank to his own credit, did not change her title to it. Bessemer Savings Bank v. Anderson, 134 Ala. 343, 32 So. 716, 92 Am.St.Rep. 38. ⁴ )

The ultimate question, then, is whether Burton or Felice "really" owned the $1,500 in question. Since it indisputably represented and was paid for property which belonged to her, we hold that she did. As the head of the household which contained the statue, Burton had an insurable interest in the property which permitted him to secure insurance coverage upon it even though it was owned by his wife. Jones v. American Eagle Ins. Co., 91 Fla. 565, 108 So. 165 (1926). ⁵ This fact could not, however, give Burton any greater interest in the insurance proceeds which in effect represented the statue, than he had had in the statue itself. Both Doss v. Roberts, 487 S.W.2d 839 (Tex.Civ.App. 1972), and Rolater v. Rolater, 198 S.W. 391 (Tex.Civ.App. 1917), squarely, and we think correctly, hold that a husband's receipt of insurance proceeds for property in which his wife held an interest renders him a trustee of those funds which represent that interest. See, generally, 5A J.A. & J. Appleman, Insurance Law and Practice, §§ 3361, 3363 (rev.ed. 1970). As the cases point out, to hold otherwise would be unacceptably to permit the outright and involuntary purchase of the wife's property by the husband for the minimal cost of an...