May 6, 2013 § Leave a comment

Dorothy Lang and Derrick Higgins were estranged husband and wife. Despite that they were living separate and apart, they maintained two joint bank accounts at the same bank, with Dorothy continuing to use the joint savings account, and Derrick continuing to use the joint checking account.

Derrick got behind in his child support payments to another woman — to the tune of $17,000 — and DHS in April, 2010, froze both joint accounts per MCA 43-19-48, imposing a lien on the deposits. When Dorothy discovered what had happened, her attorney sent a letter to DHS in May, 2010, advising them that the funds were Dorothy’s, not Derrick’s. DHS thoughtfully responded the next day with a letter pointing out that Dorothy was required by statute to file a petition with the court if she wished to challenge the lien.

Dorothy took no action immediately, and on June 17, 2010, DHS received $3,116.69 from the two accounts, no doubt causing Dorothy some economic distress. The date of the disbursement was more than 45 days after the freeze.

Finally, in September, 2010, Dorothy got around to filing a contest to the lien, and, at an evidentiary hearing, produced proof that most of the money seized was, indeed, hers, and not Derrick’s. The chancellor ordered DHS to refund Dorothy $2,000 of the money, and DHS appealed.

In DHS v. Lang, handed down by the COA on April 23, 2013, the COA reversed and rendered. Judge Fair’s opinion for a unanimous court, explained:

¶8.  … [A]lthough the statute contemplates an account holder of interest challenging the encumbrance, it does not provide a method to do so. As written, the statute does not require DHS to send notice to joint account holders, and only the obligor is subject to any specific time for filing. Other states, such as Alabama and Texas, have specifically provided for the right of a joint account holder to challenge such an encumbrance and prove ownership of the funds. See Ala. Admin. Code r. 600-3-12-.06 (2011); Tex. Fam. Code Ann. § 157.326 (2001). We conclude that our Legislature intended to acknowledge an account holder of interest’s right to challenge a DHS encumbrance, but it did not create a new mechanism for such a challenge. Instead, the Legislature left that to independent actions, just as ordinary garnishment law does.

¶9. The Mississippi Supreme Court has considered the garnishment of joint accounts. In Delta Fertilizer, Inc. v. Weaver, 547 So. 2d 800 (Miss. 1989), Delta secured a judgment against Weaver, and the circuit clerk issued a writ of garnishment on a joint savings account in the names of Weaver, his sister, and his mother. Before the garnishment was awarded, the mother filed a motion with the court, claiming to be the sole owner of the account. Id. at 801. The mother testified that all the funds belonged to her and that her children’s names were on the account for convenience because she could not handle her own money anymore. Id. Citing Cupit v. Brooks, 237 Miss. 61, 112 So. 2d 813 (1959), the court noted that a joint checking or savings account was subject to garnishment but held that it “should be garnishable only in proportion to the debtor’s ownership of the funds.” Delta, 547 So. 2d at 802-03. The burden rests on each depositor to show what portion of the funds he actually owns, and parol evidence is admissible to show his contributions. Id. at 803.

¶10. Relying on the Mississippi Supreme Court’s decision in Delta, we agree that an account holder of interest may challenge a DHS encumbrance in an independent action and present evidence to prove her contribution to the funds. The depositors are in a much better position than DHS to know the pertinent facts regarding their joint account. And while the DHS Child Support Unit has a legislatively mandated charge to enforce child-support obligations, administratively and through litigation, we do not believe the Legislature intended to dismiss the interest of joint account holders. That being said, a joint account holder must file some formal pleading within a reasonable time. Otherwise, such funds obtained by DHS would always be subject to remittance, preventing the funds from being timely disbursed to impoverished children.

The court then turned to the question whether Dorothy’s letter to DHS or her petition filed nearly three months after the order disbursing funds was effective to regain her funds. The COA answered “no”:

¶12. This Court dealt with an analogous situation in Triplett v. Brunt-Ward Chevrolet, Oldsmobile, Pontiac, Buick, Cadillac, GMC Trucks, Inc., 812 So. 2d 1061 (Miss. Ct. App. 2001). There, a mother, Triplett, held an account with Union Planters and named her daughter as a joint account holder. Id. at 1063 (¶2). A garnishment was issued naming the daughter as the debtor. Id. Although Triplett admitted that she became aware of the attachment within two days of service of the writ of garnishment, but never intervened as a proper party. Id. at 1067 (¶13). After the funds were disbursed to the creditor, Triplett filed a complaint alleging Union Planters was negligent in its failure to notify Triplett that the funds were exempt. Id. at 1064 (¶4). On appeal, this Court explained that the garnishment statute “has been construed to mean that, in order to suspend the execution of the writ of garnishment, a sworn declaration must be filed in the court before the garnishee has answered and paid into court the funds caught by the garnishment.” Id. at 1067 (¶11) (citing Miss. Action for Cmty. Ed. v. Montgomery, 404 So. 2d 320, 322 (Miss. 1981)).

¶13. Here, DHS correctly presumed that all funds in the joint account belonged to Higgins and filed a notice of encumbrance [footnote omitted]. On May 27, DHS advised Lang to file a petition with the court pursuant to section 43-19-48 in order to object the encumbrance. While we disagree that Lang was required to file pursuant to section 43-19-48, she failed to file any petition to the court before the funds were disbursed. Further, Lang presents no reason for her delay. “A letter is not the equivalent to a sworn declaration filed according to the relevant statute. It is too little, too late.” Triplett, 812 So. 2d at 1067 (¶12) (internal citation omitted).

Parting thoughts …

  • I wonder whether Dorothy now thinks it was worth the few extra bucks she saved to keep that joint account open with her n’er-do-well estranged husband. [Incidentally, the COA opinion points out that Derrick owed Dorothy back child support also. Ouch.].
  • Don’t sit on a case like this. File something right away, even if it’s wrong. You can always amend later, and you can continue to negotiate and talk with pleadings filed.  Here, the five-month delay was fatal to Dorothy’s claim.
  • This may seem like a rare case, but I actually have had a couple of cases where the question was raised about the rights of joint-account owners. They were resolved, but you never know when yours will not be.

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You are currently reading HARD GARNISHMENT LESSON FOR A JOINT ACCOUNT OWNER at The Better Chancery Practice Blog.


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