               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                             IN THE DISTRICT COURT OF APPEAL
                                             OF FLORIDA
                                             SECOND DISTRICT



CHRISTINA ANAMARIA ALEXANDER,                )
                                             )
             Appellant,                      )
                                             )
v.                                           )         Case No. 2D17-3218
                                             )
CLIFFORD GARLAND HARRIS,                     )
                                             )
             Appellee.                       )
                                             )

Opinion filed May 17, 2019.

Appeal from the Circuit Court for Pinellas
County; Jack Helinger, Judge.

Christina Anamaria Alexander, pro se.

J. Troy Andrews of Andrews Law Group,
Tampa, for Appellee.


SLEET, Judge.

             The mother, Christina Alexander, appeals the denial of her petition

seeking enforcement of an order awarding her child support for the parties' minor child

and a continuing writ of garnishment directed to disbursements to the father, Clifford

Harris, from a special needs trust. Because the trial court erroneously concluded that it

could not garnish the discretionary payments made for the benefit of the father from a

special needs trust, we reverse.
              The father is the sole beneficiary of a special needs trust established

pursuant to 42 U.S.C. § 1396p with funds from the settlement of a product liability action

brought on the father's behalf after he was catastrophically injured in a car accident as a

minor. The special needs trust is a spendthrift trust that provides him with supplemental

income while maintaining his eligibility for public assistance. See generally Sullivan v.

County of Suffolk, 174 F.3d 282, 284 (2d Cir. 1999) (explaining that a special needs

"trust is a 'discretionary trust established for the benefit of a person with a severe and

chronic or persistent disability' and is intended to provide for expenses that assistance

programs such as Medicaid do not cover" (quoting N.Y. Estates Powers & Trusts Law §

7-1.12(a)(5) (McKinney 1998)). Because the special needs trust is a spendthrift trust, it

contains numerous restrictions on the way that the distributed funds can be used. See

generally Waterbury v. Munn, 32 So. 2d 603, 605 (Fla. 1947) (stating that a spendthrift

trust provides funds for the maintenance of the trust beneficiary while securing the

trust's corpus from the beneficiary's own improvidence as well as the beneficiary's

creditors). The parties do not dispute that pursuant to the terms of the trust, the father

does not exercise any control over the trust, does not have the ability to compel the

trustee to disburse any trust funds, and does not personally receive any disbursements

from the trust because they are made directly to third parties for the sole benefit of the

father.

              The record reflects that the trust receives and will continue to receive a

monthly income of $3035.59 throughout the father's life, that the father's monthly

expenses have historically totaled an average of $2478, and that as of December 2016,

the trust contained approximately $141,997.27. As of May 30, 2017, the total arrearage

for child support was $91,780.28. On appeal, the mother argues that spendthrift

                                            -2-
provisions are unenforceable against a valid child support order pursuant to section

736.0503, Florida Statutes (2016), and that discretionary disbursements are not

protected from continuing garnishment for support payment. We agree.

              Section 736.0503(2)(a) provides that "a spendthrift provision is

unenforceable against . . . [a] beneficiary's child . . . who has a judgment or court order

against the beneficiary for support or maintenance." The Florida Supreme Court has

further explained that a continuing writ of garnishment may attach to discretionary

disbursements to enforce support orders and arrearages. Bacardi v. White, 463 So. 2d

218, 222 (Fla. 1985) ("If, under the terms of the trust, a disbursement of corpus or

income is due to the debtor-beneficiary, such disbursement may be subject to

garnishment."). Although the court cannot compel a disbursement from a trust, "[i]f

disbursements are wholly within the trustee's discretion . . . [and] the trustee exercises

its discretion and makes a disbursement, that disbursement may be subject to the writ

of garnishment." Id. Whether the disbursements are paid directly to the beneficiary or

to third parties for his benefit is immaterial to whether they may be garnished. See

§ 736.0503(3) ("[A] claimant against which a spendthrift provision may not be enforced

may obtain . . . an order attaching present or future distributions to or for the benefit of

the beneficiary." (emphasis added) (footnote omitted)); Berlinger v. Casselberry, 133

So. 3d 961, 964–65 (Fla. 2d DCA 2013).

              The mother obtained a valid child support order on May 22, 2009, which

was per curiam affirmed by this court on appeal in case number 2D09-4161. See Harris

v. Alexander, 83 So. 3d 721 (Fla. 2d DCA 2010) (table decision). The mother filed a

motion for contempt for failure to pay child support on September 22, 2009, which the

trial court granted on January 4, 2010. After the father's continued failure to pay child

                                             -3-
support, the mother filed additional motions for civil contempt and enforcement in 2010

and in 2016. Although the trial court determined that there was a support arrearage

based on the father's failure to comply with the 2009 support order, it ultimately denied

the mother's most recent motion for contempt and enforcement of the support order

because it determined that the father had no ability to pay the arrearage or his ongoing

support obligations. This was error.

              The discretionary disbursements made by the trustee are not protected

from continuing garnishment for payment of child support. See Berlinger, 133 So. 3d at

966 (explaining that section 736.0503 "does not expressly prohibit a former spouse from

obtaining a writ of garnishment against discretionary disbursements made by a trustee

exercising its discretion"). The mother has exhausted the traditional methods of

enforcing a valid child support order; the father's sole available income for payment of

support is the trust. Therefore, a continuing writ of garnishment is appropriate in this

case. See Bacardi, 463 So. 2d at 222 ("[G]arnishment of a spendthrift trust . . . should

be allowed only as a last resort . . . [w]hen . . . traditional remedies are not effective.").

              The father argues that using the trust's funds to satisfy his support

obligations would jeopardize his eligibility for public assistance under federal law;

however, he cannot identify any legal basis for this conclusion. We can find no federal

law or regulation expressly addressing the garnishment of a special needs trust to

satisfy a support obligation. To the extent that 42 U.S.C. § 1396p discusses support

payments and eligibility, subsection (c)(2)(B)(iii) states that "[a]n individual shall not be

ineligible for medical assistance by reason of paragraph (1) to the extent that . . . the

assets . . . were transferred to . . . the individual's child." Furthermore, federal law gives

great deference to state courts in family law proceedings, and the Supreme Court has

                                              -4-
explained that "[s]tate family and family-property law must do 'major damage' to 'clear

and substantial' federal interests before the Supremacy Clause will demand that state

law be overridden." Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979) (quoting United

States v. Yazell, 382 U.S. 341, 352 (1966)). In Rose v. Rose, 481 U.S. 619, 630

(1987), the Supreme Court recognized that payment of child support is in the parent's

best interest, explaining that federal "benefits are not provided to support [the

beneficiary] alone." There is no indication in the federal statutes that Congress has

expressed any intention to preempt state statutes, like section 736.0503, that permit

garnishment of spendthrift trusts to satisfy the child support obligations of the

beneficiary. Id. at 628 ("Given the traditional authority of state courts over the issue of

child support, their unparalleled familiarity with local economic factors affecting divorced

parents and children, and their experience in applying state statutes . . . that do contain

detailed support guidelines and established procedures for allocating resources

following divorce, we conclude that Congress would surely have been more explicit had

it intended the Administrator's apportionment power to displace a state court's power to

enforce an order of child support.").

              Resolution of this case requires consideration of the equities between

these particular parties and resolution of competing public policies related to the

enforceability of spendthrift provisions and the payment of support.

              On the one hand, there is the long held policy of this state
              that recognizes the validity of spendthrift trusts. On the other
              hand, there is the even longer held policy of this state that
              requires a former spouse or a parent to pay alimony or child
              support in accordance with court orders.

Bacardi, 463 So. 2d at 221. Where the two conflict, this court has held that Florida's

public policy favoring enforcement of support orders takes precedence. Berlinger, 133

                                            -5-
So. 3d at 966 ("Florida has a public policy favoring spendthrift provisions in trusts and

protecting a beneficiary's trust income; however it gives way to Florida's strong public

policy favoring enforcement of alimony and support orders."). Thus, although the trial

court correctly recognized the compelling equitable interests of the parties in this case,

we must nevertheless reverse. The special needs trust does not protect the father from

his legal obligation to support his child. A continuing writ of garnishment is appropriate

in this case, and the court may limit the award to such relief as is appropriate under the

circumstances. See § 736.0503(3).

              Accordingly, we reverse the denial of the mother's petition seeking

enforcement of an order awarding her child support for the parties' minor child and

remand for entry of a continuing writ of garnishment directed to discretionary

disbursements from the special needs trust.

              Reversed and remanded with instructions.


VILLANTI and SALARIO, JJ., Concur.




                                           -6-
