                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

STATE OF FLORIDA                       NOT FINAL UNTIL TIME EXPIRES TO
DEPARTMENT OF                          FILE MOTION FOR REHEARING AND
FINANCIAL SERVICES,                    DISPOSITION THEREOF IF FILED

      Appellant,                       CASE NO. 1D13-5743

v.

LISA O'CONNOR, F/K/A LISA
ZANE,

      Appellee.

_____________________________/

Opinion filed January 20, 2015.

An appeal from the Circuit Court for Alachua County.
James P. Nilon, Judge.

Paul C. Stadler, Jr., Assistant General Counsel, Tallahassee, for Appellant.

Michael Farrar, Miami, for Appellee.


MAKAR, J.

      Unclaimed property and an unpaid judgment collide in this marital

dissolution case. At issue is whether a judgment for unpaid child support and

marital proceeds can form the basis for obtaining ownership of funds held as

unclaimed property by the State.
                                         I.

      The marriage of Lisa O’Connor and Nabeel Zane was dissolved on October

17, 1996. Nearly seven years later, the trial court entered a post-dissolution final

judgment dated August 28, 2003, ordering Zane to pay O’Connor $2,050.80 per

month in child support, half of the proceeds from the sale of the marital home

($67,939.63), and half of the proceeds from the sale of a Disney timeshare

($8,124.00). After seven more years passed, the trial court certified on October 14,

2010, that Zane had failed to pay court-ordered support payments into the

depository, resulting in an arrearage balance of $177,860.40. Within a few months,

O’Connor filed a judgment lien against Zane in this amount.

      On February 11, 2011, O’Connor filed a motion for declaration that she was

entitled to the approximately $32,430.79 of funds held in several accounts by the

Bureau of Unclaimed Property of the Department of Financial Services

(“Department”) with Zane listed as the owner; Zane, we are told, has fled the

country to the Middle East. The Department intervened and moved to dismiss,

contending that the circuit court lacked jurisdiction because O’Connor had not

exhausted administrative remedies available to her to seek funds under the

Department’s control. The court granted the Department’s motion and this Court

affirmed with a written opinion. O’Connor v. Zane, 79 So. 3d 105 (Fla. 1st DCA

2012) [O’Connor I]. In its concluding paragraph, the Court noted that:

                                         2
      [I]f Ms. O’Connor files a claim under section 717.124, the department
      must determine whether it is in possession of unclaimed property
      belonging to Mr. Zane, and if the property consists of cash, it must
      state the amount. Ms. O’Connor may then obtain legal process or
      pursue judicial remedies, if necessary, to execute her judgment against
      the property.

79 So. 3d at 106. Armed with this Court’s opinion, O’Connor immediately filed an

amended judgment lien against Zane, and a writ of execution was delivered to the

Leon County Sheriff, who was instructed to find Zane and seize his assets.

      A year later, on May 28, 2013, O’Connor filed a claim with the Department

seeking Zane’s unclaimed property pursuant to section 717.124, Florida Statutes.

In response, the Department issued a “Notice of Intent” finding that only Zane—

not O’Connor—was entitled to the unclaimed property. On June 26, 2013, the

Department issued a Final Order denying O’Connor’s claim.

      Having exhausted administrative remedies, O’Connor filed a writ of

garnishment under section 77.049 for Zane’s unclaimed funds, which the

Department moved to dismiss and dissolve on sovereign immunity grounds. After

a hearing on the motion, the trial court entered an order denying it. The ruling was

based on its statements at the hearing that: O’Connor I was persuasive, even if

dicta, as to O’Connor’s legal rights; section 61.12, Florida Statutes, waived

sovereign immunity for purposes of garnishing the unclaimed property; a one-time

transfer of the unclaimed property did not add much work for the State compared

with ongoing garnishments; unclaimed funds were much like bank accounts that
                                         3
can be transferred; and public policy favored the result reached. This appeal

followed.

                                         II.

      The central focus of this appeal is whether sovereign immunity bars

O’Connor from reaching the unclaimed funds at issue. The Department contends

that neither the garnishment statute, section 61.12, nor the unclaimed property

statute, section 717.124, clearly and unequivocally waive sovereign immunity for

the purposes of allowing judgment creditors to reach such funds. O’Connor

counters that the purpose of section 717.124 is to return unclaimed property to its

owner. Accordingly, she asserts that her equitable and legal claim of ownership

over the funds arising from the judgment lien and writ of execution entitles her to

the unclaimed funds of her former spouse. She argues that sovereign immunity is

not implicated because the State is merely a custodian of the property in the

unclaimed funds accounts, not the title holder or owner of the accounts.

Alternatively, even if sovereign immunity were implicated, section 61.12 waives

sovereign immunity for her garnishment of the accounts. Finally, O’Connor argues

that the Department’s position violates the law of the case, set forth in O’Connor I.

      In reply, the Department again emphasizes that no clear and unequivocal

waiver of sovereign immunity has been shown, arguing that the trial court erred in

finding that section 61.12 does so. Allowing the garnishment statute to waive

                                          4
sovereign immunity for purposes other than wages, it asserts, would disrupt

administrative processes by subjecting the Department to judgment creditors

seeking funds in unclaimed property accounts. As to O’Connor I, it is not law of

the case because the statements that O’Connor and the trial court rely upon are

dicta.

                                           A.

         The disposition of unclaimed property is the subject of Chapter 717, Florida

Statutes. Section 717.1201(1) states that once unclaimed property is paid to or

delivered to the Department, the “state assumes custody and responsibility for the

safekeeping of property.” A person attempting to claim such property must turn to

section 717.124, which provides: “Any person, excluding another state, claiming

an interest in any property paid or delivered to the department under this chapter

may file with the department a claim . . . .” Further, section 717.101(18) defines

“owner” for purposes of unclaimed property as, among other things, “a person

having a legal or equitable interest in property subject to this chapter . . . .”

         In O’Connor I, this Court held that O’Connor had not exhausted her

administrative remedies because she did not file a claim with the Department

pursuant to Chapter 717. Affirming dismissal for that reason, this Court noted:

                The statutes dealing with disposition of unclaimed property in
         Chapter 717, Florida Statutes, do not authorize the department to
         determine the priority of claims that could be asserted by judgment
         creditors against unclaimed property in its possession. See Martin
                                            5
      Young Private Investigative Agency, Inc. v. Department of Banking
      and Finance, 659 So. 2d 410 (Fla. 1st DCA 1995). However, a
      judgment creditor does have standing to assert a claim against
      unclaimed property in the hands of the state in order to obtain a
      determination that the property does in fact belong to the judgment
      debtor.
            Accordingly, if Ms. O’Connor files a claim under section
      717.124, the department must determine whether it is in possession of
      unclaimed property belonging to Mr. Zane, and if the property
      consists of cash, it must state the amount. Ms. O’Connor may then
      obtain legal process or pursue judicial remedies, if necessary, to
      execute her judgment against the property.

79 So. 3d at 106. The Department has since determined that the unclaimed

property belonged to Zane, not O’Connor. As a result, the Department denied

O’Connor’s claim to the funds. O’Connor then sought “judicial remedies . . . to

execute her judgment against the property,” id., which the Department resisted

below and continues to resist in this appeal, claiming sovereign immunity.

      The primary purpose of Chapter 717, however, is to return unclaimed

property to its owners. Because Zane reneged on his legal obligations to pay

O’Connor, and has failed to claim property held in the custody of the State, he

forfeited his ownership interest. The trial court’s order below functions as a

determination that the Department, as custodian, is relieved of its obligation to

hold the funds for Zane. 1 Further, the trial court’s orders throughout the post-


1
  Although the normal course would have been for O’Connor to appeal the
Department’s ownership determination, her actions are permissible under the law
of the case set forth in O’Connor I, 79 So. 3d at 106.

                                         6
dissolution period establish that O’Connor’s rights trump Zane’s ownership

interest in the unclaimed accounts. These orders have given O’Connor “legal or

equitable interest in the property” under section 717.101(18). Under these

circumstances, where the State is acting in a custodial capacity, sovereign

immunity does not bar her from claiming and obtaining legal ownership of what

she is due. Consistent with O’Connor I and the post-dissolution orders throughout

O’Connor’s plight, her claim to the unclaimed funds is now final and complete.

      The Department rightly points out that sovereign immunity must be clearly

and unequivocally waived. The Department’s theory, however, assumes this is a

classic garnishment action in which a judgment creditor seeks to garnish sums,

such as wages or salaries, earned by judgment debtors, which are paid by state

entities. But this case is different in kind from previous sovereign immunity-

garnishment cases 2 because the state entity here is a custodian of the judgment


2
  See, e.g., Hernando Cnty. v. Warner, 705 So. 2d 1053, 1054 (Fla. 5th DCA 1998)
(sovereign immunity shielded county from garnishment by judgment creditor when
county owed judgment debtor contractual obligation and judgment debtor an
independent contractor, not employee); Metro. Dade Cnty. v. United Guar.
Residential Ins. Co. of N.C., 645 So. 2d 1117, 1118 (Fla. 3d DCA 1994)
(sovereign immunity barred garnishment of county employee salary because event
prompting debt occurred prior to enactment of sovereign immunity waiver statute);
G & J Invs. Corp. v. Fla. Dep’t of HRS, 429 So. 2d 391, 391-92 (Fla. 3d DCA
1983) (sovereign immunity barred attempt to garnish Medicaid funds owed to
judgment debtor by state agency); Wesley Constr. Co. v. Biscayne Constr. Inc.,
341 So. 2d 786, 786-87 (Fla. 3d DCA 1977) (sovereign immunity barred attempt to
garnish county, which owed money to judgment debtor); Fla. Dep’t of Transp. v.
Gordon Bros. Concrete, Inc., 339 So. 2d 1156, 1157 (Fla. 2d DCA 1976)
                                         7
debtor’s (unclaimed) property; it is not indebted in some way to Zane, the

judgment debtor, for salaries or other funds it may owe him. O’Connor does not

seek State funds yet to be tendered to Zane as a salary; rather, she seeks Zane’s

unclaimed property that the State is holding for “safekeeping” per section

717.1201(1). The trial judge correctly recognized that the funds sought are akin to

bank accounts, and that the writ of garnishment here is a one-time transaction for

Zane’s accounts themselves, rather than an ongoing garnishment of wages or

salary.

      In this regard, Chapter 717 is a detailed mechanism for citizens to make

claims to property held by the Department, property that is not the State’s. See

§ 717.1201(1). The ownership dispute here is not O’Conner versus the

Department—a case in which sovereign immunity would apply absent waiver.

Rather, the dispute is over which spouse is entitled to assets that serendipitously

landed in the Department’s care. The dispute, and the Department’s

conservatorship over the funds, has ended.

      Florida’s strong public policy of treating child support arrearages differently

from other debts reinforces this resolution of the matter. See Bacardi v. White, 463


(sovereign immunity barred attempt to garnish State, which owed money to
judgment debtor); see also Palm Beach Cnty. Sheriff v. State, 854 So. 2d 278, 282
(Fla. 4th DCA 2003) (sovereign immunity barred Sherriff’s action for
reimbursement from State for housing defendants that were supposed to be in DCF
custody).
                                       8
So. 2d 218, 222 (Fla. 1985) (“This state has always had a strong public policy

favoring the enforcement of both alimony and child support orders.”); Evans v.

Evans, 595 So. 2d 988, 990 (Fla. 1st DCA 1992) (“It is the very strong public

policy of this state to require a parent to provide support for his or her children.”).

That the Legislature has specifically required cooperation between the Department

and child support enforcement authorities in section 409.25658(1) punctuates this

point: “In a joint effort to facilitate the collection and payment of past due support,

the Department of Revenue, in cooperation with the Department of Financial

services, shall identify persons owing support collected through a court who are

presumed to have unclaimed property held by the Department of Financial

Services.” The statutory requirement that the Department work to “facilitate the

collection and payment of past due support” with unclaimed property in its custody

goes hand in glove with the trial court’s conclusions. This statute facilitates child

support payment when an original owner comes forward to claim his or her

property, but it does not foreclose other remedies when an owner, like Zane, does

not claim his property. Nothing in the statute indicates a legislative intent to keep

child support unpaid unless an owner comes forward. Indeed, subsection (5) states

that the statute’s remedy is only “supplemental” and can be used “in conjunction

with any other method of collecting support.” § 409.25658(5), Fla. Stat. While

subsection (5) speaks to the Department of Revenue’s remedies, the overall

                                          9
legislative intent is that artifices to the effective enforcement of child support

obligations must give way.

      The Department suggests to the contrary, claiming that the only permissible

release of unclaimed property to pay child support is when the debtor/former

spouse had filed a valid claim under this statute. But the Legislature could not have

intended to deny persons in O’Connor’s position—whose ex-spouses have fled the

country and abandoned their property—a similar remedy. O’Connor is not required

to wait for Zane to return to make a claim. What an odd result that would be, one

that would create an incentive for ex-spouses to conceal their whereabouts and

disengage further from the justice system.

      The Department points out, as a public policy matter, that the State treasury

will not get Zane’s unclaimed funds if O’Connor prevails (“if Florida unclaimed

property is to be remitted to ‘missing owner’ judgment creditors, there will be less

funds available to benefit the people of the State of Florida.”). But the thirst for

funds for governmental purposes is unslakable, and not a recognized legal grounds

to deprive O’Connor of the funds her ex-husband owes her and her family. The

total proceeds from Zane’s unclaimed accounts will only cover about a third of the

total arrearages Zane owes O’Connor for the care of their children and the sale of

their marital property. Surely the State would prefer that these private funds go

directly to satisfy Zane’s long-standing paternal obligations to his offspring for

                                         10
their personal upbringing—which may reduce the need for government assistance

or services—than be deposited into a faceless general treasury fund for

indeterminate purposes. Unclaimed property may ultimately become governmental

property, but that does not foreswear the government’s primary obligation to return

it to private hands.

      In short, the Department’s assertion of immunity in this case is inconsistent

with its custodial function under section 717.1201(1) and the framework for

claiming property under Chapter 717. Sovereign immunity is not implicated when

an original owner makes and prevails on a claim for unclaimed property; likewise,

it is not implicated when a superior claim of ownership to unclaimed property is

established by court orders, as O’Connor has established under Chapter 717. On

these grounds, the trial court’s order denying the Department’s motion to dismiss

and dissolve was proper.

                                         B.

      Next for review is section 61.12 which—although not a model in clarity—

has been deemed sufficiently clear and unequivocal to waive sovereign immunity

as to garnishment of wages. O’Connor argues that this waiver of sovereign

immunity should extend to unclaimed property for which she holds a judgment.

Section 61.12(1), which outlines the scope of the “monies or other things” that are

subject to attachment or garnishment, states:

                                         11
      (1) So much as the court orders of the money or other things due to
      any person or public officer, state or county, whether the head of a
      family residing in this state or not, when the money or other thing is
      due for the personal labor or service of the person or otherwise, is
      subject to attachment or garnishment to enforce and satisfy the orders
      and judgments of the court of this state for alimony, suit money, or
      child support, or other orders in proceedings for dissolution, alimony,
      or child support; when the money or other thing sought to be attached
      or garnisheed is the salary of a public officer, state or county, the writ
      of attachment or garnishment shall be served on the public officer
      whose duty it is to pay the salary, who shall obey the writ as provided
      by law in other cases. It is the duty of the officer to notify the public
      officer whose duty it is to audit or issue a warrant for the salary sought
      to be attached immediately upon service of the writ. A warrant for as
      much of the salary as is ordered held under the writ shall not issue
      except pursuant to court order unless the writ is dissolved. No more of
      the salary shall be retained by virtue of the writ than is provided for in
      the order.

(Emphasis added). This section is followed by section 61.12(2), which states:

      (2) 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.

(Emphases added).

      Read it its entirety, section 61.12 provides a clear and unequivocal waiver of

sovereign immunity for garnishment of salaries paid by the State; but it does not

                                         12
independently contain a clear waiver of immunity for writs to garnish the accounts

at issue. The language in section 61.12(1), “when the money or other thing is due

for the personal labor or service of the person or otherwise,” could be read

broadly to include the monies now held in the unclaimed property accounts.

§ 61.12(1), Fla. Stat. (emphasis added). Language that follows in subsection (1),

however, is limited to “when the money or thing sought to be attached or garnished

is the salary of a public officer, state or county . . . .” Id. (emphasis added).

Further, section 61.12(2) is couched in terms of garnishment of salaries on a

“periodic and continuing basis for so long as the court may determine . . . .”

§ 61.12(2), Fla. Stat. While it does allow for garnishment for child support, “any

other provision of law to the contrary notwithstanding,” id., the waiver of

sovereign immunity extends only to salaries paid by the State (not the unclaimed

property of third parties custodially held by the State). For this reason, section

61.12 does not provide a basis for the relief O’Connor seeks.

                                         III.

      In conclusion, O’Connor is entitled to the unclaimed property of her former

spouse to satisfy his obligations flowing from the dissolution judgment entered

against him. Sovereign immunity is unavailable for the Department to continue to

hold this property in its custody and deprive its rightful possessor, O’Connor, of its

ownership, which has been judicially decreed.

                                         13
    AFFIRMED.

SWANSON, J., and SJOSTROM, JONATHAN E., ASSOCIATE JUDGE,

CONCUR.




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