Posted by Nydia Streets of Streets Law in Florida Child Support

Can a spendthrift trust account be garnished to satisfy a Florida child support order? This question was answered in the case Alexander v. Harris, 2D17-3218 (Fla. 2d DCA May 17, 2019) in which the mother appealed an order denying her motion for contempt against the father who was the beneficiary of a special needs, spendthrift trust and who owed the mother over $90,000.00 in child support arrears.

The evidence established the father is the sole beneficiary of a special needs trust pursuant to 42 U.S.C. § 1396p which was created when he was a minor as a result of a settlement of a products liability claim. The trust is a spendthrift trust because it contains provisions that severely restrict how the funds can be disbursed and used. According to the appellate opinion, the parties did not dispute “[T]hat 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.” After a hearing on the mother’s motion for contempt, the trial court found the father did not have the ability to pay child support, and disregarded the funds from which he was benefiting in his special needs trust.

The mother appealed, arguing that according to section 736.0503 of the Florida Statutes, spendthrift provisions are unenforceable against a valid order for support. This section of the Florida Statutes states “a spendthrift provision is unenforceable against . . . [a] beneficiary's child . . . who has a judgment or court order against the beneficiary for support or maintenance.” Applying this section of the Statutes, the appellate court agreed with the mother and reversed the trial court’s ruling, reasoning “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).”

The appellate court further held, “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.”

If you need assistance with a case that involves the enforcement of a Florida child support order, contact a Miami child support attorney for assistance. A consultation is the first step on the path to understanding your rights and remedies.