Florida/Georgia Personal Injury & Workers Compensation

...he Bankruptcy Code. We reverse the district epurt’s contrary holding on this'issue. We are also called upon to decide a Florida law issue that is unrelated to the ERISA preemption question: whether the Florida wage exemption statute, Fla.Stat.Ann. § 222.11 (West 1989), provides an exemption for that part of a bank account that consists of the earnings of an independent contractor. We conclude that under Florida law, the earnings of an independent contractor are not protected under § 222.11....

...Accordingly, we hold that Fla.Stat. § 222.21 (2)(a) is not preempted by ERISA. 6 B. THE WAGE EXEMPTION ISSUE 1.The Wage Exemption Statute As they did before the bankruptcy and district courts, the Sehleins argue that they are entitled to a wage exemption under Fla. Stat. § 222.11 which provides: No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this...

...o is providing more than one-half of the support for a child or other dependent. This exemption shall apply to any wages deposited in any bank account maintained by the debtor when said funds can be traced and properly identified as wages. Fla.Stat. § 222.11 (emphasis added)....

...2.The Decisions of the Bankruptcy and District Courts The bankruptcy court rejected this claimed exemption on two grounds. First, it held that Dr. Schlein was an independent contractor and as such, his remuneration was not “wages” as contemplated by § 222.11....

...e Sehleins “failfed] to trace and properly identify the funds deposited in the checking account” is clearly erroneous and cannot serve as a basis for affirming the judgment. We proceed to examine the other basis: the inapplicability of Fla.Stat. § 222.11 to the income of independent contractors....

...repeatedly has *755 held that state courts are the ultimate expositors of state law_”). The lone Florida Supreme Court ease that has addressed this issue is Patten Package Co. v. Houser, 102 Fla. 603 , 136 So. 353 (1931), in which the Florida Supreme Court applied the predecessor of § 222.11....

...That statute consisted of the first sentence of the present law. Federal bankruptcy courts sitting in Florida have cited the Patten case to reach divergent conclusions. Compare In re Montoya, 77 B.R. 926, 928 (Bankr.M.D.Fla.1987) (“The payment of wages to an employee are exempt under 222.11 whereas compensation to an independent contractor is not.”), with In re Glickman, 126 B.R. 124, 126-27 (Bankr.M.D.Fla.1991) (“F.S. § 222.11 is not ambiguous and must be read literally....

...Sarmiento, 487 So.2d 75 (Fla.Dist.Ct.App.1986), a creditor appealed from an order dissolving an order of garnishment relating to the commissions earned by the debtor as a commodities brokerage account executive. The debtor relied on the same Fla.Stat. § 222.11 that is in issue here....

...“personal labor or services;” that is to say, whether appellee was an employee or an independent contractor. Id. at 76 (emphasis added). Our inquiry must be similarly circumscribed. Our conclusion is reinforced by the 1985 amendment to Fla.Stat. § 222.11 that added the third sentence to the statute....

...atute since before the time of the Patten decision. Moreover, this amendment was made after the Patten decision and after at least two bankruptcy court decisions had read Patten as barring the earnings of independent contractors from exemption under § 222.11. In *756 re Moriarty, 27 B.R. 73, 74 (Bankr.M.D.Fla.1983); In re Malloy, 2 B.R. 674, 676 (Bankr.M.D.Fla.1980). The Florida Legislature’s choice of amendatory language does not even hint that those courts had read § 222.11....

...o the extent that the debtor has deposited wages in it. Because Dr. Schlein was not paid wages, he did not deposit any wages in the bank account at issue. Therefore, the district court correctly held that Dr. Schlein is not entitled to the Fla.Stat. § 222.11 exemption....

...d support, applies in those cases in which child support arrearages have been reduced to a final money judgment. The Court held that the provisions of section 61.12(1) do not apply to create an exception to the exemption from garnishment provided by section 222.11, Florida Statutes (1979), for the wages of a head of a family residing in Florida....

...Canakaris, 382 So.2d 1197 (Fla. 1980) (property distribution at marriage dissolution). [6] See art. VII, § 6, Fla. Const. (homestead property exempt from taxation); art. X, § 4, Fla. Const. (protection of homestead property from forced sale). [7] See § 222.11, Fla....

...The Fourth District Court of Appeal affirmed [1] and certified the following question: Whether a divorced man, who pays $1,000 a month alimony, which constitutes the sole support of his ex-wife, is entitled to the exemption of wages from garnishment under section 222.11, Florida Statutes (1975). [2] Pursuant to article V, section 3(b)(3), Florida Constitution (1972), we have accepted jurisdiction. When the petitioner instituted garnishment proceedings against his wages, respondent claimed a statutory exemption as head of a family under section 222.11, Florida Statutes....

...Even though divorced, respondent must, by court order, continue to support his ex-wife. This duty arose out of a family relationship and makes him the financial head of a household. We agree with the district court and hold that respondent is entitled to the exemption provided by section 222.11....

...ALDERMAN, J., dissents with an opinion, with which BOYD, J., concurs. ALDERMAN, Justice, dissenting. I dissent for the reason so succinctly stated by Judge Moore in his dissent, wherein he said: [T]here can be no head of a family when there is no family. If Section 222.11, Florida Statutes (1977), is to be expanded to provide an exemption for those divorced husbands who are required to support their former wives then I believe this to be the prerogative of the Legislature... . 362 So.2d at 1008. Accordingly, I would quash the decision of the district court. BOYD, J., concurs. NOTES [1] Killian v. Lawson, 362 So.2d 1007 (Fla. 4th DCA 1978). [2] § 222.11 provides as follows: 222.11 Exemption of wages from garnishment....

...2 In a sworn affidavit, Appellant explained that his household included his wife and him; that his wife was disabled, unable to work, and received Social Security benefits; and that his wages, which typically did not exceed $750 2 See Fla. Stat. § 222.11(1)(c) (defining the “head of family” as “any natural person who is providing more than one-half of the support for a child or other dependent”). 4  Case: 14-13715...

...and owing in lieu of moving forward with the hearing, but Appellant refused. An evidentiary hearing was scheduled for March 31, 2014. Appellees reiterated their settlement offer to no avail, and discovery continued. 3 See id. § 222.11(2)(a) (exempting from garnishment “[a]ll of the disposable earnings of a head of family whose disposable earnings are less than or equal to $750 a week”); see also id....

...competence, be it an attorney or a state court judge, could be misled or deceived by the sworn reply. 30  Case: 14-13715 Date Filed: 06/30/2015 Page: 31 of 36 more than one-half of her support. See Fla. Stat. § 222.11....

...(At least $1,000 in value is admittedly exempt as personal property owned by the head of a family pursuant to Article X, § 4, of the Florida Constitution.). The asserted statutory basis for the claimed exemption as proceeds of the wages of the head of a household is § 222.11, Florida Statutes....

...However, Florida appellate courts have held that the statute does not protect the proceeds of the wages, only the wages themselves. See, e.g., Ellis Sarasota Bank & Trust Co. v. Nevins, 409 So.2d 178 (Fla 2d D.C.A.1982). Accordingly, since Florida law governs this issue, § 222.11, Florida Statutes, does not provide a legal basis for the claim of exemption as proceeds of wages due the head of a household....

...ment creditors pursuant to Fla.Stat. § 222.14. In Re Gefen, 35 B.R. at 372. The Debtors also argue that Mr. Gillett's IRA constitutes wages of the head of a family and therefore, are exempt from the claims of creditors pursuant to Florida Statutes, § 222.11. Wages, once paid by an employer and deposited in a bank, are no longer protected by § 222.11 and are subject to the claims of creditors....

...FINDINGS OF FACT This court finds as follows: 1. The Debtor is a doctor of medicine specializing in neurological surgery residing in the State of Florida. The parties have stipulated that the Debtor is a head of a family for purposes of Florida Statute 222.11....

...the P.A. and deposited it in a local bank. No other monies were deposited in the account as of the date of the filing of the petition. 7. The Debtor claimed the deposit as exempt on schedule B-4 of the Debtor's petition by virtue of Florida statute section 222.11. 8. After the filing of the petition, the Trustee made a timely objection to this exemption, claiming that the Debtor did not earn "wages" which were entitled to exemption under Florida Statute 222.11. CONCLUSIONS OF LAW The Court makes the following conclusions of law: *928 Florida Statute 222.11 exempts from legal process any money or other thing due to any person who is a head of household residing in Florida when the money or thing is due for personal labor or services performed by that person. Fla.Stat. 222.11....

...vices. Secondly, the relationship of the Debtor with the person or entity who paid the money must be examined to determine whether the Debtor is an employee or an independent contractor. The Florida legislature evidenced an intent in Florida Statute 222.11 to protect the fruit of someone's labor for the benefit of his family....

...Accordingly, all of the monies under discussion are the result of the Debtor's personal services alone and not passive income. The second element of the analysis then is the relationship between the debtor and the person paying for the debtor's services. Courts interpreting section 222.11 have typically looked to the facts of each case to determine if compensation paid to a debtor is classified as wages to an employee or as compensation to an independent contractor. The payment of wages to an employee are exempt under 222.11 whereas compensation to an independent contractor is not....

...The court held that the debtor was an independent contractor rather than an employee. Id. As set forth below, the relevant factors when *929 applied to the facts of this case establishes that the Debtor is an employee entitled to the protection of Section 222.11....

...Therefore, the Debtor satisfies this test as an employee. Thus, by applying the facts of the instant case to the factors in the relevant case law, it is clear that the Debtor is an employee of the P.A. As an employee, the Debtor's salary is classified as wages which are exempt under Florida statute 222.11. Wherefore, it is ORDERED as follows: The Trustee's objection to the claimed exemption for $3,600.00 based upon Florida Statute Section 222.11 is DENIED.

...As a result, the Defendant could not have claimed the wages as an exemption as of the date of the petition because the wages were not in an account maintained by the Defendant which could be traced and properly identified as wages, as required by Fla.Stat. § 222.11....

...X, § 4, Fla. Const. Wearing Apparel $100 Art. X, § 4, Fla. Const. Watch, Wedding ring $100 Art. X, § 4, Fla. Const. 1986 Honda $1,000 Fla.Stat. § 222.25 Schwab and Peak IRAs $68,996 Fla.Stat. § 222.21 Principal Mutual Annuity Not Stated Fla.Stat. § 222.11 Insurance Policies $84,250 Fla.Stat. § 222.11 United States Army Retirement Pay Not Stated Not Stated....

...ict of West Virginia ordered the Deed to the Ponte Vedra house and IRAs proceeds to be turned over for payment of the $6,197,591.34 judgment; and (3) Debtor's insurance policies or cash surrender value are not exempt within the meaning of Fla. Stat. § 222.11....

...Powell, IV, of Ombres, Powell, Tennyson & St. John, West Palm Beach, for respondent Blazer. Larry R. Morgan of Greater Orlando Area Legal Services, Inc., Orlando, as amicus curiae. ANSTEAD, Judge. By this petition for writ of certiorari the petitioners seek our interpretation of Section 222.11, Florida Statutes (1975) which exempts from garnishment wages due the head of a household. The petitioners' bank accounts were garnished. In response, petitioners claim that the funds in the accounts were their wages and hence protected from garnishment under Section 222.11, which provides that No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residi...

...321, 322) Quite simply, the Florida and Colorado statutes are entirely different; and the difference is critical. Colorado protects a limited amount of wages, $100, earned within a thirty day period, regardless of whether the wages have been received or not. Section 222.11 protects an unlimited amount, as long as it is payable for personal labor or services, but only affords protection to amounts due to be paid....

...r was virtually impossible. Today, with direct bank depositing of wages and our extensive credit system, many wage earners never see their earnings other than as paper transactions through a bank account. Hence, if it was the legislature's intent by Section 222.11 to completely *990 protect the wages of the head of the family from garnishment, the existing statute does not do the job....

...missions in the amount of $650, which are earned, but unpaid at the time of filing the Petition for Relief. The Trustee contends *74 that the real estate commissions do not constitute wages and are not covered by the exemption provision of Fla.Stat. § 222.11....

...etchy Realty on his earnings. The Debtor provided his own transportation while on the job, but received no reimbursement. The sole issue for determination is whether the Debtor's compensation constitutes wages which are exempt by virtue of Fla.Stat. § 222.11, or whether it must be classified as compensation to an independent contractor and, therefore, not exempt as wages. Florida Statutes § 222.11 exempts monies due to any person who is a head of household for labor or services rendered by that person....

...e needed to collect the renewal commissions, the Referee had the authority to fix a fair basis of compensation. The debtor also argues that the unpaid renewal commissions are exempt from process by virtue of Florida's garnishment protection statute. Section 222.11 provides No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this s...

...32 (Bankr. D.Ariz.1989); In re McLeod, 102 B.R. 60 (Bankr.S.D.Miss.1989). This Court agrees with the sound reasoning of those cases and concludes that section 222.21(2)(a) is preempted by ERISA § 1144(a). II. Debtor's Claim of Exemptions for Wages. Section 222.11, Florida Statutes, provides in relevant part: No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is th...

...This serves as further indicia of the independent contractor status of the debtor, Edward Schlein. By applying the facts of the instant case to the factors set forth in relevant case law, it is clear that debtor, Edward Schlein, is an independent contractor, and the sums in controversy are not exempt wages as contemplated by section 222.11, Florida Statutes....

...In McCafferty, supra ., that debtor deposited his wages in a bank account which also contained deposits from wages of the spouse. The court found that this commingling made it impossible to trace and identify the wages earned by the debtor. In so finding the court held that section 222.11, Florida Statutes, would not apply to the funds....

...ation and Barnett Bank, are not exempt pursuant to section 222.21(2)(a), Florida Statutes, since this state statute is preempted by ERISA, 29 U.S.C. § 1144(a). The account of debtor Edward Schlein in Barnett Bank are not exempt as wages pursuant to section 222.11, Florida Statutes, because he is an independent contractor, and the wages have been impermissibly commingled....

...Supreme Court of Florida, en Banc. June 13, 1952. Coe & Coe, Pensacola, for appellant. Philip D. Beall, Pensacola, for appellee. HOBSON, Justice. The determination of the question raised on this appeal requires us to again consider the proper construction to be given to Section 222.11 F.S.A....

...Counsel for appellant pose the question in the following language: "Is the accrued salary of a corporation executive for the performance of purely managerial duties exempt from garnishment, as a sum of money due for personal labor or services?" Counsel for appellee presents the interrogatory in this form: "Does Sect. 222.11, Fla....

...irmed or reversed and there appeared no prospect of an immediate change in the Court's personnel, the judgment from which the appeal was prosecuted was affirmed. The lower court had ruled in effect that the language of Section 5792 C.G.L., 1927, now Section 222.11 F.S.A., was clear and unambiguous and made no distinction between "money or other thing" due for manual labor and "money or other thing" due for personal services which did not involve manual labor....

...s the vocable "services" would have a signification similar to that accorded the word "labor" for it would then derive its true meaning from its conjunctive association with that word. This construction would necessarily exclude from the benefits of Section 222.11, supra, executives who are paid large salaries. We deem it appropriate to observe at this juncture that not only would such construction exempt high salaried executives from the operation of Section 222.11, supra, but it would likewise exempt all executives regardless of the amounts of their salaries....

...ate, and at no one of such sessions has the legislature seen fit to change in any material manner the language in the body of the statute. This fact may be taken as an indication that the legislature approved or accepted the construction placed upon Section 222.11, supra, by the effect of the three to three decision of this Court in the case of Wolf v. Commander, supra. What everyone knows the Court is presumed to know. For years, certainly since before the last reenactment without change of Section 222.11, supra it has been a matter of common knowledge that some day laborers earn as much or more in wages as many bookkeepers, secretaries and other so-called "white collar" employees, who could hardly be classified as manual laborers, are paid in salaries....

...udgment against Grace was entered against the appellant garnishee. The appellant then filed a motion to set aside the default judgment and final judgment in garnishment contending that the sums due by it to Grace were for wages and were exempt under § 222.11, Fla....

...The reduction in the judgment was based upon the appellant's showing that it had paid Grace from June 27, 1963, up to and including August 23, 1963, the sum of $480 as wages. The trial judge rejected the appellant's contention that as a garnishee it could urge the exemption of Grace under § 222.11, supra....

...B)(ii) because under the modified Plan the debtors will retain ownership in their real estate holding representing their respective homestead and certain personal properties, otherwise exempt under local law, Art. X of Fla. Const., Sec. 4; Fla.Stat. 222.11, et seq....

, Inc., 283 So.2d 570 (Fla. 4th DCA 1973). Section 222.11(2)(b), Florida Statutes (1993), provides that

...This decision conflicts with Arnold v. Arnold, 292 So.2d 384 (Fla.3d DCA 1974), and with other cases which prescribe the requirements for a stipulation under Florida Rule of Civil Procedure 1.030(d). Our jurisdiction rests on Article V, Section 3(b)(3), Florida Constitution. [2] § 222.11, Fla....

...393, 283 S.W. 472 (1926). Contra Merchants Bank v. Weaver, 213 N.C. 767, 197 S.E. 551 (1938); McCabe v. Fee, 279 Or. 437, 568 P.2d 661 (1977). *592 The district court of appeal was influenced in its decision by the legislative history of the wage exemption in section 222.11, Florida Statutes (1983), which prior to 1985 read as follows: No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any...

...thing is due for the personal labor or services of such person. The courts in Hertz v. Fisher, 339 So.2d 1148 (Fla. 1st DCA 1976), and Holmes v. Blazer Financial Services, Inc., 369 So.2d 987 (Fla. 4th DCA 1979), interpreted the foregoing wording of section 222.11 to mean that wages for personal services were no longer exempt from creditors once they were placed in a bank account. In 1985, the legislature expanded the exemption in section 222.11 by adding an additional sentence, which provided that "[t]his exemption shall apply to any wages deposited in any bank account maintained by the debtor when said funds can be traced and properly identified as wages." § 222.11, Fla.Stat. (1989). In 1993, the legislature again amended section 222.11 to provide that the funds are exempt for six months after earnings are received by the financial institution if they can be traced and properly identified, even though they may have been commingled with other funds. Because no similar amendments had been made to section 440.22, the court below felt that this reflected a legislative intent that workers' compensation benefits once deposited in a bank account were no longer exempt. The legislative history of section 222.11 does not draw us to the same conclusion. In the first place, the wording of the two statutes is somewhat different. Moreover, the fact that the legislature responded to two court decisions which gave a limiting construction to the exemption provided by section 222.11 does not mean that the legislature views the exemption provided by section 440.22 differently. The legislature was never called upon to amend section 440.22 because no court has ever placed such a limiting construction on that statute. Therefore, we believe our construction of section 440.22 is consistent with the wage exemption found in section 222.11....

...funds have been converted to another form. See majority op. at 4 (suggesting that the legislature address the length of such exemption and the effect of converting the funds into another form). I also agree with the courts below that the language of section 222.11 is persuasive in the instant case. Section 222.11 clearly shows that the legislature can create such an exemption and spell out its parameters, if it so desires....

...) after October 22, 1994, the date of enactment. Bell advised the Debtors they were entitled to a $1,000 automobile exemption and a $1,000 personal property exemption for the filing of a Chapter 7 bankruptcy. In 1993, the Florida Legislature amended Section 222.11, Fla.Stat., providing additional exemptions, including Section 222.25(1), Fla.Stat....

...ficient rights in the retirement payments to which Defendant's lien could attach. The Court will first consider Plaintiff's exemption argument. Plaintiff has referred to the retirement fund payments as "wages" or "pay" exempted under Florida Statute 222.11. Plaintiff contends that the periodic payments are wages because the CITY OF CORAL GABLES RETIREMENT SYSTEM deducts a portion of the payment for purposes of Federal withholding tax. F.S. 222.11 pertains to money due for personal services or labor....

...Appellee moved to dissolve the writ of garnishment, alleging that because he was head of a family and because the money had been paid directly to the bank account by his employer for his personal labor and services, it was exempt from garnishment under section 222.11, Florida Statutes (1979)....

...The trial judge here seemed to lay great emphasis on what he perceived to be the intent of the legislature to protect money that is the result of wages earned by the head of a household. In following that perceived legislative intent, he concluded that section 222.11 continues to provide an exemption when the wages leave the protected hands of the employer and go directly into another resting place not normally subject to garnishment. Nevertheless, section 222.11 does not afford such protection....

...For instance, without any words of limitation, a "child" commonly refers to any son or daughter, regardless of his or her age. See The American Heritage Dictionary 265 (2d ed.1982) (defining "child" to mean, inter alia, "A son or daughter; an offspring."). Since it is also our obligation to construe section 222.11 liberally in favor of the debtor, it is reasonable to conclude the existence of a filial relationship is all that is necessary to qualify as a "child" under the statute....

...The Chapter 7 Trustee ("Trustee") filed a timely objection which was argued at hearing on April 7, 1995. After consideration of the record, including the posthearing memoranda, the Court concludes that the assets in question do not qualify as earnings under Fla.Stat. § 222.11....

...Therefore, the Trustee's objection will be sustained. FACTUAL BACKGROUND Debtors, Antonio and Nelida Zamora ("Debtors"), filed a voluntary petition under Chapter 7 of the Bankruptcy Code on January 6, 1995 (the "Filing Date"). Mr. Zamora qualifies as "Head of Family" under Fla.Stat. § 222.11(1)(c) for the two years prior to the Filing Date....

...In Schedule C filed with the petition, Debtor claimed $200 cash, $6000 due from clients for professional services rendered, unknown possible receivables in contingent fee cases, a $200 Terrabank checking account and a $2000 United National Bank checking account as exempt earnings for personal services pursuant to Fla.Stat. § 222.11. *784 DISCUSSION Section 222.11, Fla.Stat., entitled "Exemption of Wages from Garnishment" provides in relevant part as follows: (1) As used in this section the term: (a) "Earnings" includes compensation paid or payable, in money of a sum certain, for personal services or labor whether denominated as wages, salary, commission, or bonus....

...also receive regular compensation dictated by the terms of an arms length employment agreement." Id. The Debtors argue that Manning and the cases cited in Manning, including In re Schlein, 8 F.3d 745 (11th Cir.1993), are no longer controlling since § 222.11 was amended effective October 1, 1993....

...The Florida legislature expressed no intent to change the state exemption law regarding the characterization of the type of income the statute protects from garnishment. Therefore prior case law defining "money or other *785 thing . . . due . . . for personal services" remains applicable under amended Florida Statute § 222.11....

...sit in bank accounts. For the foregoing reasons, it is — ORDERED as follows: 1. The Trustee's Objections to Property Claimed as Exempt is sustained with respect to the receivables, [1] cash and checking accounts claimed to be exempt under Fla.Stat. § 222.11....

...Because Florida has "opted out" of the federal exemptions in Section 522(d), the analysis turns on the application of Florida's statutory exemptions. The Debtors assert that the tax refund should be exempt from attachment, garnishment or process pursuant to Florida Statute Section 222.11 because the tax refund can be traced and properly identified as wages. Section 222.11 provides in pertinent part: No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the *309 payment of any money or other thing due to any person who is the head of a f...

...nd properly identified as wages. The Debtors reason that the funds held by the IRS are similar to money placed in a bank account. If funds are held on account of an individual and can be traced to wages, the Debtors argue, the funds are exempt under Section 222.11. Reported decisions on this issue are sparse. In Matter of Truax, 104 B.R. 471 (Bankr.M.D.Fla.1989), the debtor also claimed that his tax refund was exempt under Section 222.11....

...ifiable as wages. United States District Judge Zloch, in an unpublished opinion in Kramer v. Gennett, Case No. 89-8551 (S.D.Fla.1991), considered a similar argument that money placed in an attorney's trust account traceable to wages was exempt under Section 222.11....

...The monies are not held in a segregated account for the taxpayer nor are they accessible by the taxpayer until actually refunded. Second, the statute is clear on its face. The exemption only applies to bank accounts, not to monies otherwise traceable to wages. Statute 222.11 must be construed as written and cannot be extended by judicially legislating an additional category of exempt funds....

...Finally, the Court must address the objectors' argument that the exemption is lost once the proceeds of the annuity contracts are deposited in a bank account. They contend that because the Florida Legislature expressly provided an exemption for wages deposited into bank accounts, § 222.11, Florida Statutes, and failed to do so with regards to annuity proceeds, the exemption is lost once the proceeds are deposited into a bank account....

...nt was received by him for personal services rendered. He contended in the trial court and contends here that the monies paid to him for personal labor or services and deposited in his bank account are not subject to writ of garnishment by virtue of § 222.11, Fla....

...On the date of bankruptcy, the Debtor was entitled to receive insurance commissions *55 from State Farm, including renewal commissions. The Debtor's bankruptcy schedules valued the commissions at $36,365.00 which the Debtor claimed exempt under Fla.Stat. 222.11....

...of the estate. Section 522(b) of the Bankruptcy Code provides exemptions allowing debtors to retain property. Florida has "opted out" pursuant to Section 222.20 Fla.Stat. (1979), creating its own exemptions. In 1993, the Florida Legislature amended Section 222.11, Fla.Stat....

...ion. The Debtor incurred unsecured debt prior to October 1, 1993, the effective date of the Act, and is limited to the exemptions available prior to October 1, 1993. The exemption claimed in the insurance commissions must be analyzed under Fla.Stat. § 222.11 (1991) which provided: No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this state, when the money or *56 other thing is due for the personal labor or services of such person. Fla.Stat. § 222.11 (1991). The Eleventh Circuit in In re Schlein, 8 F.3d 745 (11th Cir. 1993) determined the exemptions provided in Section 222.11 do not extend to earnings of an independent contractor. As the Debtor is an independent contractor, pursuant to Fla. Stat. § 222.11 (1991), the Debtor is not entitled to exempt commissions earned prior to the filing of the bankruptcy petition....

...As Section 222.25(1) became effective October 1, 1993, and there was no individual exemption for an automobile prior to that date, the Debtor is not entitled to the $1,000.00 automobile exemption. Accordingly, First Union's Objection to the Debtor's Exemptions are due to be sustained, and pursuant to Fla.Stat. § 222.11 (1991) and Section 6 1993 Fla.Laws ch....

...sly herewith, it is ORDERED, ADJUDGED and DECREED First Union National Bank of Florida's Objection to the Debtor's Exemptions is SUSTAINED; it is further ORDERED, ADJUDGED and DECREED that pursuant to Section 6 1993 Fla.Laws ch. 93-256 and Fla.Stat. § 222.11 (1991), the commissions earned by the Debtor from State Farm pursuant to the Agency Agreement prior to the bankruptcy filing are not exempt; and it is further ORDERED, ADJUDGED and DECREED that pursuant to Section 6 1993 Fla.Laws ch....

...Holmes v. Blazer Financial Services, Inc., 369 So.2d 987 (Fla. 4th DCA 1979), and Hertz v. Fisher, 339 So.2d 1148 (Fla. 3d DCA 1976). These cases are inapposite, because they deal with the scope of the statutory exemption of wages due granted under section 222.11, Florida Statutes (1979)....

...t subject to garnishment. 4. Defendant is the head of a family. DISCUSSION Plaintiff argues Defendant is an independent contractor and not an employee of the Garnishee. Therefore, the money owed by the Garnishee to Defendant is not exempt under F.S. § 222.11. On the other hand, Defendant argues he is an employee of the Garnishee, thus the money owed by the Garnishee to Defendant constitutes wages and is exempt under F.S. § 222.11. In support of its argument, Plaintiff cites to the Court In re Schlein, 114 B.R. 780 (Bankr.M.D.Fla.1990), and In re Montoya, 77 B.R. 926 (Bankr.M.D.Fla.1987), which both held the wage exemption (F.S. § 222.11) is not applicable to money due or paid to independent contractors....

...73 (Bankr.M.D.Fla.1983), which in turn relied on the Florida Supreme Court decision, Patten Package Co. v. Houser, 102 Fla. 603, 136 So. 353 (1931), and 13 Fla.Jur.2d Creditors' Rights and Remedies, § 11 (1982). The initial analysis then must be the extent of the exemption under F.S. § 222.11....

...*126 In Patten, the defendant was employed by the garnishee for the purpose of delivering petroleum products. The Supreme Court found the money, in the amount of $703.19, due the defendant from the garnishee was not exempt under section 3885 R.G.S.1920, 5792 C.G.L.1927, now F.S. § 222.11....

...services rendered by the defendant. Based on those facts, the Court found the $703.19 was not exempt from garnishment. The decision is not determinative on the fact the defendant was an independent contractor. [1] This Court finds the issue in F.S. § 222.11 is not whether the defendant is an independent contractor or an employee but rather whether the work performed was in the nature of personal labor or services rendered by the defendant....

...313, 188 So. 83 (1939); White v. Johnson, 59 So.2d 532 (1952) (the accrued salary of a corporate executive for the performance of purely managerial duties was exempt from garnishment, as a sum of money due for personal labor or services pursuant to F.S. § 222.11). F.S. § 222.11 exempts from garnishment "the payment of any money or other thing due to any person who is the head of a family residing in this state, when the money or other thing is due for the personal labor or services of such person." The Statute does not limit the term "payment of any money or other thing due" to wages alone....

...ly means of living without becoming a charge upon the public may be accomplished. [Cites omitted]. (Emphasis added). Patten, 102 Fla. at 606-607, 136 So. at 355. The lower court had ruled in effect that the language of Section 5792 C.G.L., 1927, now Section 222.11 F.S.A., was clear and unambiguous and made no distinction between "money or other thing" due for manual labor and "money or other thing" due for personal services which did not involve manual labor. The members of this Court who shared his view observed that the Court must accept the law as it is written and had no right by judicial fiat to add any qualifying words to it. White at 533. F.S. § 222.11 is not ambiguous and must be read literally. Nothing in the Statute *127 limits its operation to employees. Moriarty and its progeny could only have relied on an inaccuracy found in a secondary authority, 13 Fla.Jur.2d Creditors' Rights and Remedies, § 11 which states, "However, [F.S. § 222.11] cannot be construed to cover a case in which an independent contractor seeks exemption of wages due to him." This Court finds this statement is not the law in Florida....

...[2] In the present case, the money owed to Defendant by the Garnishee stemmed from the personal labor and services of Defendant. The parties are not disputing that fact. Based on the reasoning in Patten, White, and Wolf, and based on the clear wording of F.S. § 222.11, the Court finds the money owed Defendant from the Garnishee is exempt from garnishment regardless of whether the Defendant is an employee or independent contractor since the money stemmed from his personal labor and services....

...appellee Guillermo Sarmiento. We affirm. The trial court, which entered the garnishment order initially, decided after a non-jury trial that the commissions earned by appellee as an account executive in a commodity brokerage firm were "wages" under section 222.11, Florida Statutes (1985)....

...The Court reviewed the Objection, the record, heard argument of counsel and finds as follows: The Debtor filed a petition for relief under Chapter 7 of the Bankruptcy Code on March 16, 1989. An IRS refund to the Debtor in the amount of $3,441.00 for the tax year 1988 is claimed as exempt wages pursuant to Section 222.11 Fla.Stat....

...e estate which passes to the trustee. United States v. Michaels, 840 F.2d 901 (11th Cir.1988). Thus, in the Eleventh Circuit the tax refund is not characterized as wages and is not exempt pursuant to Art. X, Section 4 of the Florida Constitution and Section 222.11 Fla.Stat....

...Accordingly, it is ORDERED, ADJUDGED AND DECREED the Trustee's Objection to Exemption of IRS Refund be, and the same is hereby, sustained. The IRS refund to the Debtor in the amount of $3,441.00 for the tax year 1988 does not constitute wages for purposes of Section 222.11....

...We believe that the New York decision expresses the better view. It ensures that a court's carefully crafted formula to maintain a former spouse will not be subverted by subsequent action. Also, it accords with the public policy of Florida as announced for other related areas of the law. E.g., Garnishment, Section 222.11, Florida Statutes (1981); Maryl v....

...409 of the Internal Revenue Code of 1986, as amended, is exempt from all claims of creditors of the beneficiary or participant. The plain language of the Statute indicates that an individual retirement account (IRA) qualifies under § 408 of the Internal Revenue Code. A review of the legislative history of Fla.Stat. § 222.11 indicates that the Statute intended to create an additional exemption in Florida. The Florida House of Representatives Committee on the Judiciary noted in its Staff Analysis of the proposed § 222.11 that the law would provide an the exemption from execution, garnishment or attachment of monies placed in an IRA account, except that such monies would be subject to legal process by persons so entitled under an order issued in a domestic relations case....

...lear that Florida garnishment statutory provisions §§ 77.01 and 77.06, F.S.A., do not contain a limitation on the portion of a person's wages that may be garnished, the only exception being the "head of the family" exemption provided by Fla. Stat. § 222.11, F.S.A., while the federal legislation does contain specific limitations....

...deral garnishment statute operates to supersede the Florida garnishment statutes. 15 U.S.C. § 1673 pre-empts Chapter 77, Florida Statutes, F.S.A., in its entirety, except that the wages of the head of a family in Florida may not be garnisheed under Section 222.11, Florida Statutes, F.S.A.

...nt against the garnishee. The question presented is whether the trial court properly entered judgment against the garnishee when there was pending an affidavit by the debtor for exemption of wages from garnishment. The affidavit was made pursuant to § 222.11 Fla....

...It is funded solely by the Debtor through voluntary and regular wage deductions. The Debtor argues that, pursuant to 11 U.S.C. § 541(c)(2), the Plan is not property of the estate and that, even if it were, it is exempt under 11 U.S.C. § 522(b) and Florida Statute §§ 185.25 & 222.11....

...[7] Moreover, the Creditor has not alleged, let alone proven, otherwise. See Fed.R.Bankr.P. 4003(c) ("[T]he objecting party has the burden of proving that the exemptions are not properly claimed."). Hence, the Debtor's interest in his Plan is exempt pursuant to Fla.Stat. § 185.25. Florida Statute § 222.11 Florida Statute § 222.11 ("Exemption of wages from garnishment") provides: No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the...

...This exemption shall apply to any wages deposited in any bank account maintained by the debtor when said funds can be traced and properly identified as wages. In Harrington, this Court held that monies contributed to a debtor's retirement fund by the debtor and his employer were not exempt pursuant to Fla.Stat. § 222.11 since the fund could not be characterized as wages. 70 B.R. at 302-03. Similarly, the court in In re Morrow held that wages contributed to an ERISA plan lost such character and were not exempt pursuant to Fla.Stat. § 222.11....

...sited for savings or everyday living expenses in a bank account."). The Court continues to believe that this is the proper construction of "wages" ("money or other thing due for the personal labor or services . . .") within the meaning of Fla. Stat. § 222.11. Moreover, the Debtor's Plan is not exempt under the final sentence of Fla.Stat. § 222.11 since the Court has determined that the funds in the Debtor's Plan are not wages, and, the funds have not been "deposited in any bank account maintained by the debtor". Hence, the Debtor's interest in his Plan is not exempt pursuant to Fla.Stat. § 222.11....

...As a predicate for this proceeding, defendant submitted the affidavit of its duly authorized agent in which it averred under oath that plaintiff was not the head of a family residing in Florida. This averment *815 was made in order to satisfy the interdiction of F.S. § 222.11, F.S.A., which provides that no writ of garnishment shall issue from any court of this State to attach or delay the payment of money due to any person who is the head of a family residing in this State, when the money is due for the personal labor or services of such person....

...te facts negating the judgment debtor's entitlement to the exemption afforded by the statute. The judgment appealed is accordingly affirmed. Affirmed. CARROLL, DONALD K., Chief Judge, and STURGIS, J., concur. NOTES [1] F.S. § 77.03, F.S.A. [2] F.S. § 222.11, F.S.A....

...Finally, the Court must address the objectors' argument that the exemption is lost once the proceeds of the annuity contracts are deposited in a bank account. They contend that because the Florida Legislature expressly provided an exemption for wages deposited into bank accounts, § 222.11, Florida Statutes, and failed to do so with regards to annuity proceeds, the exemption is lost once the proceeds are deposited into a bank account....

...t be claimed as exempt, under Florida statute permitting exemption of wages of head of family. Id at 100. [2] Trustee points to other Court decisions which held wages, once paid by an employer and deposited in a bank, are no longer protected by F.S. § 222.11 and are subject to the claims of creditors....

...2d DCA 1982) and Hertz v. Fisher, 339 So.2d 1148 (Fla. 1st DCA 1976). This Court finds McCafferty does not stand for the proposition wages of the head of household which were commingled with those of the non-head of household are not exempt under F.S. § 222.11. The issue in McCafferty and in F.S. § 222.11 is whether funds, which were deposited in a bank account, can be traced and identified as wages earned by the head of household....

...Thus, this Court interprets McCafferty as stating even if the head of household's wages are commingled with the non-head of household's wages, the portion of the wages which can be traced to the wages of the head of household, are exempt under F.S. § 222.11. Other Court decisions presented by the Trustee which held wages, once paid by an employer and deposited in a bank are not exempt under F.S. § 222.11 are not the law today. These decisions were before the amendment to F.S. § 222.11. The 1985 amendment to F.S. § 222.11 added the sentence "[t]his exemption shall apply to any wages deposited in any bank account maintained by the debtor when said funds can be traced and properly identified as wages." Thus, the amendment supersedes the pre-amendment decisions....

...DeCarlo, West Palm Beach, FL, for debtors. ORDER SUSTAINING OBJECTION TO EXEMPTION OF SALARY ACCOUNT ROBERT A. MARK, Bankruptcy Judge. Gregory Manning, a codebtor in this case ("Debtor"), declared $4200 in a Great Western bank account as exempt under Florida Statutes § 222.11 ("F.S. 222.11")....

...On June 9, 1993, he and his wife filed a joint petition for relief under Chapter 7 of the Bankruptcy Code. They scheduled the bank account at Great Western, which at the time of filing had a $4200 balance, as an exempt asset. DISCUSSION The issue before the Court is whether the money in the bank account is exempt under F.S. 222.11, which exempts "money ....

...hat his right to the severance pay is vested and accrued, and, therefore, claims that it is not property of the estate. Alternatively, the debtor claims that the payment which apparently would be made in a lump sum is exempt as wages under Fla.Stat. § 222.11....

...iled by Jack H. Weech, Jr., (Trustee) the Trustee in the above captioned Chapter 7 case. It is the contention of the Trustee that certain amounts deposited in bank accounts and claimed as exempt by Timothy and Joanne McCafferty pursuant to Fla.Stat. § 222.11, which allows an exemption for wages of the head of the household, cannot be allowed as exempt inasmuch as the bank account contains comingled wages of both debtors....

...rty, the head of the household, and of Joanne McCafferty, the joint Debtor spouse. It is undisputed that it is impossible to trace and identify the wages earned by Mr. McCafferty in the accounts. This claim of exemption is based upon Florida Statute § 222.11 which provides in pertinent part as follows: No writ of attachment or garnishment or other process shall issue from any of the Courts of this state to attach or delay the payment of any money or other thing due to any person who is the head...

...The Debtor asserts that his interest in the stock option plan is not subject to assumption or assignment to the trustee and is exempt from the claims of his creditors. Specifically, the Debtor asserts that the stock options are exempt wages and are not property of his Chapter 7 estate pursuant to Florida Statute § 222.11....

...mpt from the claims of his creditors. The trustee objected to the exemption as wages alleging that the stock options are not wages and, further, that the Debtor is not single and is not the "head of family" as that term is defined in Florida Statute § 222.11(1)(c)....

...Thus, the Debtor's employee stock options are an asset and not wages. As an asset, the rights embodied in those stock options attributable to the Debtor's pre-petition services became property of the estate at commencement of this case. Florida Statute § 222.11 does not apply....

...th his employer in the amount of $522,500. Grieco filed an affidavit of head of household, in which he stated, inter alia, that he was paid "earnings" by his employer as compensation for his services, and that he was a "head of family" as defined in section 222.11(c), Florida Statutes. Under oath, Appellant's account officer in charge of this matter denied allegations in Grieco's affidavit that the monies garnished were exempt as earnings as that term is defined in section 222.11, Florida Statutes....

...The trial court did not grant Appellant an evidentiary hearing but instead, on the date the employer's answer was filed, it granted Grieco's motion to dissolve. The exemption statute defines "earnings" to include "compensation paid or payable ... for personal services or labor. " § 222.11(1)(a), Fla....

...Although neither party has cited authority on point, it does not seem likely that a "capital account" could qualify for the exemption. Such a term usually represents an investor's ownership interest in a business, [2] not earnings for personal services. Thus, Grieco's head of household affidavit under section 222.11 may not exempt all the "other monies" his employer owed to him....

...on the bank ("the second BOA writ"). Marsh filed a claim of exemption as to this writ and requested a hearing and then moved to dissolve the second BOA writ claiming, in part, that the money in the account was exempt from garnishment under sections 222.11(2)(c) and 222.11(3) of the Florida Statutes (2008)....

...Like the first BOA writ, the second BOA writ makes no factual or legal claims whatsoever. Thus, Marsh's claim that the funds in this account are exempt from execution does not contradict any "claim" stated in this writ. Third, Marsh's claim that the funds held by BOA are exempt from execution under sections 222.11(2)(c) and 222.11(3) of the Florida Statutes does not contradict Patchett's "claim" that she holds an unsatisfied judgment against Marsh and that BOA is holding funds in an account for him....

...Patchett and her attorney were, in fact, under no obligation to accept Marsh's exemption claim, but were entitled instead to contest it and to have a hearing "as soon as [was] practicable to determine the validity of the claimed exemptions," at which Marsh, not Patchett, bore the burden of proving entitlement to a section 222.11 exemption. § 77.041(3), Fla. Stat. (2008); see Brock v. Westport Recovery Corp., 832 So.2d 209, 211 (Fla. 4th DCA 2002) (finding that the judgment debtor bore the burden of proving his entitlement to the section 222.11 exemption at a hearing held on a motion to dissolve a writ of garnishment); Cadle Co. v. G & G Assocs., 757 So.2d 1278, 1279 (Fla. 4th DCA 2000) ("The burden of proving the entitlement to [a section 222.11] exemption is on the debtor.")....

...Because no basis appears in the instant record to support imposition of sanctions under section 57.105 or otherwise, the order on appeal is, in its entirety, reversed. NOTES [1] The B in BHS stands for "Barry" as in Dr. Barry Ginsberg, and the H stands for "Harry" as in Harry Marsh. [2] Section 222.11(2)(c)-(3) of the Florida Statutes (2008) provides: [(2)](c) Disposable earnings of a person other than a head of family may not be attached or garnished in excess of the amount allowed under the Consumer Credit Protection Act, 15 U.S.C....

allow garnishment of wages over $750 per week. § 222.11(2). Once a head of household exemption is claimed

...Osofsky of Moyle, Flanigan, Katz, Raymond and Sheehan, P.A., West Palm Beach, for appellant. Robert D. Friedman of Friedman & Greenberg, P.A., Plantation, for appellee. GROSS, J. John Brock appeals the issuance of a continuing writ of garnishment. We affirm the trial court's finding the "head of family" exemption under section 222.11, Florida Statutes (2001) did not apply; however, we quash the continuing writ of garnishment because Brock's earnings were not "salary or wages" within the meaning of section 77.0305, Florida Statutes (2001)....

...All Island's answer to the writ of garnishment stated that Brock was the vice president of the corporation and that he did not earn a "salary" or "wages," but instead took a disbursement of $2,000 from company profits once every two weeks. Brock filed a motion to dissolve the writ of garnishment, a claim for exemption under section 222.11, and a request for hearing....

...exemption. See Cadle Co. v. G & G Assocs., 757 So.2d 1278, 1279 (Fla. 4th DCA 2000). Courts examine the totality of the circumstances to determine whether the exemption is applicable. See In re Pettit, 224 B.R. 834, 839 (Bankr.M.D.Fla. 1998). Under section 222.11(2)(b), "[d]isposable earnings of a head of family, which are greater than $500 a week, may not be attached or garnished unless such person has agreed otherwise in writing." Brock made no agreement in writing. Thus, the critical aspect of this appeal is whether Brock's income is classified as "earnings" within the meaning of the statute. Section 222.11(1)(a), states that "`[e]arnings' includes compensation, paid or payable, in money of a sum certain, for personal services or labor whether denominated as wages, salary, commission, or bonus." (Emphasis added). To decide whether monies from employment qualify for the section 222.11(2)(b) exemption, the relevant inquiry is often whether a person's employment is a salaried job or is in the nature of running a business....

...uch they received; the payment of their wages [was] purely discretionary"). Likewise, in In re Zamora, 187 B.R. 783 (Bankr.S.D.Fla.1995), the court concluded that an attorney's compensation from his own law practice did not qualify as earnings under section 222.11....

...Brock's two week pay stub did not correspond with his year to date earnings. Brock did not satisfactorily explain why his distributions from the corporation decreased from $108,000 in 1999 to $56,000 in 2000. We therefore affirm the trial court's ruling that the section 222.11(2)(b) exemption does not apply....

...paid at regular intervals on a yearly basis...." BLACK'S LAW DICTIONARY 1336 (7th ed.1999). "Wage" is defined as "Payment for labor or services, usually based on time worked or quantity produced." Id. at 1573. "Salary or wages" under section 77.0305 falls within the section 222.11(1)(a) definition of "earnings"; the latter statute includes the terms "wages" and "salary" within its description. Brock's earnings did not qualify for the exemption because they were not "compensation, paid or payable, in money of a sum certain, for personal services or labor ...." § 222.11(1)(a)....

...No. 97). In April of 2007, the Debtor amended his Schedules B and C, listing the MFCU Checking Account with a balance of $8,836.93 instead of the originally listed amount of $4,945.00, and claiming the new balance as exempt pursuant *893 to Chapter 222.11(3), Florida Statutes....

...old. First, the Trustee contends that the funds claimed as exempt cannot be traced and identified as funds representing earnings of the Debtor. Second, the Trustee claims that in any event the Debtor is not the head of a family as defined in Chapter 222.11 of the Florida Statutes, and therefore, even if the Debtor succeeds in tracing the funds to earnings, the claim of exemption cannot be allowed....

...report. Third, the Debtor asserts that the funds transferred from the third account into the MFCU Checking Account and the funds which were already in the MFCU Checking Account are all traceable to earnings, and therefore exempt pursuant to Chapters 222.11, 222.22, and 222.25, Florida Statutes....

...This is a core matter pursuant to 28 U.S.C. section 157(b)(2)(B) and (E). The papers filed and evidence presented at the trial make it clear that the threshold issue which must be resolved is the Debtor's status as head of family pursuant to Chapter 222.11, Florida Statutes....

...rbial grain of salt, and concludes that the Debtor lacks the power of persuasion to support his claims in the Court's eyes. With this in mind, the Court turns to the threshold issue to be resolved, the Debtor's status as head of family under Chapter 222.11, Florida Statutes. Chapter 222.11 of the Florida Statutes provides exemption of wages from garnishment under certain circumstances for earnings of "head of family." Fla. Stat. Ann. § 222.11 (2007). The statute defines the term "head of family" as "any natural person who is providing more than one-half of the support for a child or other dependent." Fla. Stat. Ann. § 222.11(1)(c) (2007)....

...r other dependent. This exemption shall apply to any wages deposited in any bank account maintained by the debtor when said funds can be traced and properly identified as wages." In re Wheat, 149 B.R. 1003, 1008 (Bankr.S.D.Fla.1992); Fla. Stat. Ann. § 222.11 (2007)....

...ife of her one-half share of the joint assets of the parties. Debtor filed her chapter 7 petition on January 27, 1993. In schedule C of her petition, debtor claimed as exempt her personal property pursuant to Article X, § 4 Florida Constitution and Section 222.11, Florida Statutes....

..., it is ORDERED: *122 1. The trustee's objection to the debtor's claim of exemption pursuant to Article X, § 4, Florida Constitution is withdrawn. 2. The trustee's objection to the debtor's claim of exemption for the property settlement pursuant to section 222.11 Fla.Stat....

...50 at 28, 29.) He also signed and was given a copy of a Client Opening Account Agreement and a Disclosure Statement. ( Id. ) Pettit did not receive any other documents. (Carter's Ex. 50 at 29.) CONCLUSIONS OF LAW The first issue in this Case is whether the commissions and bonuses earned by Pettit are exempt pursuant to § 222.11 Florida Statutes....

...he earnings are received by the financial institution if the funds can be traced and properly identified as earnings. Commingling of earnings with other funds does not by itself defeat the ability of a head of family to trace earnings. Fla.Stat.Ann. § 222.11 (West 1998)....

...The issue is whether his commissions and bonuses are earnings within the meaning of the statute. The only Florida Supreme Court case to address the issue is Patten Package Co. v. Houser, 102 Fla. 603, 136 So. 353 (1931). In Houser, the court interpreted the predecessor to § 222.11. [1] The debtor defendant, Houser, delivered petroleum products to Gulf Refining Company, the garnishee. Id., 136 So. at 354. The creditor garnished $ 703.19 owed to Houser. Id. Houser claimed that the money owed to him was exempt pursuant to § 222.11....

...124 (Bankr.M.D.Fla.1991) (holding that payments to head of family for personal labor and services are exempt whether the head of family is an employee or an independent contractor). In 1993, in In re Schlein, the Eleventh Circuit Court of Appeals addressed the issue of whether § 222.11 exempts compensation of independent contractors....

...for personal labor or services" was not limited to earnings of employees. Id. at 754. The court disagreed and held that the "earnings" of an independent contractor are not money due for personal labor or services and are thus not exempt pursuant to § 222.11....

...The second basis for the Schlein decision was the language of the statute. The court pointed out that the statute specifically exempted wages deposited only into a bank account. Schlein, 8 F.3d at 756. The Court held that because Schlein's earnings were not wages, they were not exempt pursuant to § 222.11. Id. In October 1993, § 222.11 was amended. [2] The revised statute substitutes the term "earnings" for the language "money or other thing due to any person . . . for the personal labor or service of such person." Fla.Stat. Ann. § 222.11 (West 1998)....

...Finally, the statute expanded the definition of exempt bank deposits to be synonymous with the definition of earnings. Id. Although all of the Florida bankruptcy cases since Schlein hold that earnings of independent contractors are not exempt pursuant to § 222.11, only two cases address the effect of the 1993 amendment on the Schlein holding....

...In Zamora the Debtor owned a law practice as a sole practitioner. Id. at 784. He also owned a marina. Id. The court held that cash in bank accounts from Debtor's law practice and marina as well as accounts receivable from his law practice were not exempt earnings pursuant to § 222.11....

...tially a job or in the nature of running a business instead of whether a debtor is labeled an employee or an independent contractor. Id. at 784. The court pointed out several factors to determine whether a debtor's compensation is exempt pursuant to § 222.11....

...The other case to address the effect of the 1993 amendment on the Schlein holding was In re Lee, 190 B.R. 953 (Bankr.M.D.Fla. 1995). In Lee, the court held that insurance renewal commissions earned by an independent contractor were not exempt pursuant to § 222.11....

...Thus, with regard to earnings as opposed to bank accounts, Schlein is still controlling with regard to its holding that the exemptions do not extend to earnings of an independent contractor. Zamora at 784-785. Id. at 954. Unlike Lee, this court does not interpret Zamora to hold that § 222.11 does not extend to earnings of an independent contractor....

...employee or an independent contractor. Zamora, 187 B.R. at 785. This Court agrees with the reasoning of Zamora and adopts a totality of the circumstances approach in determining whether a debtor's compensation constitutes exempt earnings pursuant to § 222.11....

...Pettit is not in a position to obtain draws from Joint Venture. Finally, Pettit has no ownership interest in Joint Venture. In light of the circumstances surrounding Pettit's relationship with Joint Venture, the Court concludes that Pettit's commission and bonuses are exempt earnings pursuant to § 222.11. Wage Account Having found that Pettit's commissions and bonuses are exempt earnings pursuant *840 to § 222.11, the Court must now determine what portion of the Wage Account is attributable to his earnings. The statute requires that money in a bank account be traceable and properly identified as earnings in order to be exempt. Fla.Stat.Ann. § 222.11 (West 1998)....

...On November 13, 1997, the date of the filing of the Bankruptcy Petition, the balance of the Wage Account was $25,349.17. The balance represents the sum of the beginning monthly balance of $306.74, plus deposits of $23,042.43 and $2,000 made by Pettit on November 13, 1997. Debtors claim an exemption of $23,392.43 pursuant to § 222.11....

...Houser, [102 Fla. 603], 136 So. 353 (Fla.1931) (citing to section 3885, Rev. Gen.St.1920, section 5792, Comp.Gen.Laws 1927). [2] Although the 1993 amendment occurred two months prior to the Schlein decision, the court applied the prior statute. Fla.Stat.Ann. § 222.11 (West 1992) [3] On their Bankruptcy Schedule C, Debtors claimed an exemption amount of $23,392.43....

...d Claim of Exempt Property. The issue before the Court is whether the Debtor's claim entitlement to receive a payment *452 from his professional association under an Amended Deferred Wage Agreement is exempt as "earnings" pursuant to Florida Statute § 222.11....

...deferred wages (the "Deferred Wages") with a scheduled value of Forty Thousand and 00/100 ($40,000.00) Dollars. The Deferred Wages due and the UCC-1 lien securing the interest in the Deferred Wages were claimed as exempt pursuant to Florida Statute § 222.11....

...The determination as to the amount of their compensation was made by and among the Debtor and Dr. Martel. The Trustee's Objection to the Debtor's Amended Claim of Exempt Property asserts that the payment under the Wage Agreement does not constitute earnings for personal services or labor within the meaning of Florida Statute § 222.11, but rather constitutes a liquidation, division and return of the Debtor's equity interest and assets in the Professional Association....

...not yet received by the Professional Association due to the time delay in collecting payments from patients for services performed by the Debtor. Thus, the Debtor urges that the $75,000.00 constitutes exempt earnings within the purview of Fla. Stat. § 222.11....

...Section 522 provides that a state may opt out of the federal exemptions and limit a debtor's rights to only those provided under its state laws. The State of Florida has exercised this option. Fla.Stat. Ch. 222.20 (1995). The relevant State statute at issue in the case at bar is Florida Statute § 222.11 entitled "Exemption of Wages from Garnishment" which provides, in relevant part, as follows: (1) As used in this section, the term: (a) "Earnings" includes compensation paid or payable, in money of a sum certain, for personal services or labor whether denominated as wages, salary, commission, or bonus....

...(b) Disposable earnings of a head of a family, which are greater than $500 a week, may not be attached or garnished unless such person has agreed otherwise in writing. In no event shall the amount attached or garnished exceed the amount allowed under the Consumer Credit Protection Act, 15 U.S.C. § 1673. Fla.Stat. 222.11 (1995)....

...orts his minor child by paying child support and supports his former wife by paying alimony. Thus, the issue before the Court is whether the Deferred Wages constitute earnings paid for personal services or labor within the purview of Florida Statute 222.11. This Court finds that the Deferred Wages are not exempt under Florida Statute § 222.11....

...ional Association. An analysis of whether the Debtor is an employee or an independent contractor is not directly on point in the case at bar, but is analogous, and therefore helpful, in determining the feasibility of an exemption under the Fla.Stat. § 222.11. In the principal case analyzing the exemption parameters of Fla. Stat. § 222.11, the Eleventh Circuit Court of Appeals held that "money due for personal labor or services" must be money earned as an employee, not money received as an independent contractor....

...However, this Court does not agree. The Court finds that the Debtor is more similarly situated to an independent contractor than an employee because an employee in the sense of a standard employer/employee relationship envisioned by the Florida Legislature in drafting § Fla.Stat. 222.11 is not afforded such latitude or luxury as the Debtor has....

...It is a contract between the Debtor as an individual and the debtor and his partner as officers of the Professional Association. The negotiation of the Employment Agreement conjures up a picture of Woody Allen in "Take the Money and Run" cross examining himself. Furthermore, Florida courts have found that Fla.Stat. § 222.11 was designed to protect the "fruit of one's labor for the benefit of his family." In re Locke, 99 B.R....

...Thus, the intent when drafting the Wage Agreement was to divide the assets of the Professional Association and distribute the equity to the shareholders upon dissolution. The Deferred Wages are best characterized as a return on the Debtor's investment rather than exempt earnings under Florida Statute § 222.11....

...783 (Bankr.S.D.Fla.1995); In re Parker, 147 B.R. 810 (Bankr.M.D.Fla. 1992). CONCLUSION Based upon the foregoing, the Court finds that the contemplated payment of $75,000.00 under the Wage Agreement between the Debtor and the Professional Association does not constitute earnings under Fla.Stat. § 222.11....

...Accordingly, the $75,000.00 payment at issue is not exempt from the bankruptcy estate. ORDER In accordance with the foregoing, it is hereby ORDERED AND ADJUDGED as follows: *456 1. The payment under the Wage Agreement does not constitute earnings within the meaning of Fla.Stat. § 222.11. 2. The Trustee's Objection to Debtor's Amended Claim of Exempt Property is hereby sustained on the basis that the Debtor is not entitled to claim the payment as exempt under Fla.Stat. § 222.11. DONE AND ORDERED. NOTES [1] § 222.11 was amended effective October 1, 1993....

...ition of exempt bank deposits to be coextensive with the definition of "earnings." For the purpose of this opinion, prior case law defining "money or other thing . . . due . . . for personal services" remains applicable under amended Florida Statute § 222.11.

...Consequently, the Court is unaware of the reason, if any, for Debtors' failure to turn the refund over to the Trustee. At the hearing on June 30, 1999 Debtors' counsel attempted to elicit testimony from Debtors that the refund was a refund of withheld wages. However, a tax refund of withheld wages is not exempt pursuant to § 222.11, Florida's wage exemption statute....

...This is an appeal from an order authorizing the garnishment of the wages of appellant, Barbara A. Mazzella. At issue is whether she is entitled to a statutory exemption from garnishment because of her continuing support of her adult son while he attends college. We hold that she is and reverse. Section 222.11, Florida Statutes (1991) provides in relevant part: No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who...

...son's support. The question is whether she is disqualified from claiming the exemption because she no longer has a legal obligation to provide that support. [1] *1157 In an apparent attempt to clarify who qualifies for the wage exemption provided by section 222.11, the legislature amended that section in 1981 to include the language emphasized above....

...For instance, without any words of limitation, a "child" commonly refers to any son or daughter, regardless of his or her age. See The American Heritage Dictionary 265 (2d ed. 1982) (defining "child" to mean, inter alia, "A son or daughter; an off-spring."). Since it is also our obligation to construe section 222.11 liberally in favor of the debtor, it is reasonable to conclude the existence of a filial relationship is all that is necessary to qualify as a "child" under the statute....

...rase "head of family" prior to the 1981 amendment. In Killian, supra, the Florida Supreme Court relied upon the alternative tests previously utilized by the courts in homestead protection cases to determine the meaning of "head of family" as used in section 222.11....

...Since the 1981 amendment evinces no legislative intent to change this body of law, other than to require the payment of more than one-half of the support of the child or dependent, we believe these cases are still relevant to an understanding of the "head of family" provisions contained in section 222.11....

...The facts demonstrate Mazzella has assumed a personal responsibility and a moral obligation to provide an advanced education and financial support for her son. Under the case law discussed above, this would qualify Mazzella as head of a "family in fact." In conclusion, we hold that Mazzella is entitled to the benefit of section 222.11 whether we consider the plain meaning of the words used in the statute or utilize the "family in fact" test set out in the case law....

...Accordingly, we reverse and remand with directions for proceedings consistent herewith. Because we believe this to be an issue that will substantially impact Florida residents, both as creditors and debtors, we also certify as an issue of great public importance, the question of whether a parent is entitled to the benefit of section 222.11, Florida Statutes (1991), when that parent provides more than one-half of the support for an adult child attending college....

...LETTS, J., dissents without opinion. NOTES [1] Appellee Boinis seems particularly concerned by the fact that someone in Mazzella's position — a physician making approximately $100,000 per annum — could utilize the exemption statute. As presently drafted, however, section 222.11 shields the head of a family from garnishment regardless of how much money he or she earns....

...Appellant also alleges that deposition costs were improperly awarded and that the garnishment allowed exceeds the amount permissible. Wages due for the personal labor or services of a person who is the head of a family residing in this state are generally exempt from garnishment. § 222.11, Florida Statutes....

...1st DCA 1977); § 61.12(1), Florida Statutes. Although the support arrearages owed in the present case were reduced to judgment at a time when the support obligation had terminated due to the children's majority, § 61.12 is nevertheless applicable, and removes the § 222.11 garnishment exemption, since the proceeding remained essentially one for child support....

...Appellant presents no other compelling reason or authority for construing the statute to make totally ineffective its stated exception to wage garnishment exemption whenever payment of child support obligations can be avoided for the period of minority. Appellant filed a § 222.12, Florida Statutes, affidavit claiming the § 222.11 garnishment exemption, and alleges that since no controverting affidavit was filed the court was without authority to enter a judgment of garnishment....

...1978), is cited in support of his position. However, failure to file a controverting affidavit merely operates as an admission of the facts alleged in the § 222.12 affidavit, and neither § 222.12 nor Miami Herald precludes the court's consideration of whether § 61.12 supersedes § 222.11 as a matter of law in these circumstances....

...A circuit judge signed a continuing writ which was issued by the clerk of courts to Grieco's employer, Deloitte & Touche, on August 11, 1998. Grieco filed an amended motion to dissolve the writ of garnishment, claiming that he was a "head of family" within the meaning of section 222.11, Florida Statutes (1997)....

...Along with the motion, Grieco filed an affidavit sworn to before a notary public. The affidavit stated that Grieco was an employee of Deloitte & Touche; that he was paid wages for his personal labor and services; that he never consented in writing to his wages being garnished; and that he was the "head of a household" under section 222.11, since he was married to Christine Grieco and provided more than one-half of her support....

...In spite of this patent financial ability, on the part of the judgment debtor, to meet this obligation, the creditor alleges in his complaint that he is unable to satisfy his judgment. The salary is not subject to garnishment, attachment or other process directed to the satisfaction of judgments by virtue of § 222.11 Fla....

...§ 3101, providing an exemption for veterans' benefits dispensed by the Veteran's Administration, could have no possible application here. Another point raised, though not seriously argued, is that the lump sum payment should have been exempt under Florida Statute 222.11 in that the money received was wages due the head of a household....

...pport arrearages had been reduced to a final money judgment. We hold that where a money judgment has been obtained by the former wife, the provisions of section 61.12 do not apply to create an exception to the exemption from garnishment set forth in section 222.11, Florida Statutes (1979)....

...ecifically stated that Sokolsky was not exempt from garnishment due to section 61.12. On appeal, the district court held that even though the support arrearages had been reduced to a money judgment, section 61.12 nevertheless applied and removed the section 222.11 garnishment exemption....

...We do not agree with the district court's conclusion that the fact that the support arrearages had been reduced to money judgment in no way altered the applicability of section 61.12 to the present case to create an exception to the exemption established by section 222.11. Section 222.11 establishes an exemption for a head of a family residing in Florida from garnishment of his wages....

...sky's affidavit. On the other hand, had the past-due child support not been reduced by Kuhn to a final money judgment subject to execution, the district court would have been entirely correct in holding that section 61.12 constitutes an exception to section 222.11 and that, therefore, it would not be necessary for an ex-spouse to follow the directive of section 222.12 and to file a controverting affidavit to the other ex-spouse's affidavit claiming head of the family status....

...1980), and our present holding here, it is conceivable that where an ex-wife reduces to money judgment an order for past-due support payments and seeks garnishment of her ex-husband's wages to collect this debt, the husband might attempt to claim the head of the family exemption in section 222.11 by claiming that he pays alimony or child support to his ex-wife. Killian v. Lawson involved the claims of a third-party debtor. In that case, we held that a divorced husband, who pays alimony which constitutes the sole support of his ex-wife, is entitled to the exemption of wages from garnishment under section 222.11 since, we decided, a wage earner need not reside in the same house with his wife or children to remain head of a family....

...tion for writ of prohibition and hold that under the facts of the present case where the trial court's order awarding support had not been reduced to final money judgment subject to execution, section 61.12 applied to create an exception to sections 222.11 and 222.12, Florida Statutes (1979), and that therefore the garnishment proceedings to collect child support for the period of September 21, 1978, to January 26, 1979, should not have terminated as a matter of law because the ex-wife failed to file a controverting affidavit....

...nt of the former spouse's wages, even if he is head of a family residing in Florida, to enforce "orders of the court of this state for alimony, suit money, or child support, or other orders in proceedings for dissolution, alimony, or child support"; section 222.11 which provides for exemption of a former spouse's wages from garnishment where he is head of a family residing in this state; and section 222.12 which provides the procedure for claiming this exemption which includes the requirement that the former spouse controvert under oath the affidavit of the other former spouse claiming head of the family status. We hold that section 61.12(1) creates an exception to the exemption provided by section 222.11 and that therefore the provisions of section 222.12 are not applicable where the former wife is seeking garnishment pursuant to section 61.12(1) to enforce child support "orders of the court of this state." The fact that the former hus...

...ection to Claim of Exemption filed by Diane Jensen, Trustee (Trustee), who is in charge of the administration of the estate in the above-captioned Chapter 7 case. J. Norris Lee and his wife, Rhay E. Lee, (Debtors), claimed as exempt, under Fla.Stat. § 222.11, renewal commissions that J....

...reviously sold by the Debtor. The Trustee contends that these renewal commissions are not wages or earnings due for labor or personal services rendered, and, thus, do not qualify for the wage exemption accorded to a head of household under Fla.Stat. § 222.11....

...On April 11, 1994, the Debtor and his wife filed their Petition for Relief under Chapter 7 of the Bankruptcy Code. On October 19, 1994, the Debtors filed their Third Amended Schedule C in which they claimed, for the first time, that the renewal commissions were exempt under Fla.Stat. § 222.11. On October 21, 1994, the Trustee timely filed an Objection to the Debtor's claim of exemption on the basis that the renewal commissions claimed as exempt are not within the exemption of Fla.Stat. § 222.11. Fla.Stat. § 222.11 provides an exemption from attachment or garnishment for earnings of a head of family that are compensation for labor or services....

...The amendment also expands the scope of the exemption to earnings which are credited or deposited in any financial institution within 6 months after the earnings are received by the financial institution, if the funds can be traced and properly identified as earnings. Fla.Stat. § 222.11(3)....

...her the Debtor earned the subject commissions as an independent contractor or as compensation for labor or personal services. Therefore, this matter will be scheduled for final evidentiary hearing. DONE AND ORDERED. NOTES [1] Prior to the amendment, § 222.11 exempted "money due for personal labor and services," as compared to "wages" deposited in any bank account. Fla.Stat. § 222.11 (1991)....

..." 1993 Fla.Laws ch. 256. (emphasis added.) The Act also amended and created other sections affecting the availability of exemptions, i.e., (1) Section 77.0305, waiving sovereign immunity regarding garnishment of wages of state and local government employees; (2) Section 222.11, limiting garnishment of wages for heads of families to amounts in excess of $500 per week, with consent; (3) Section 222.25(2), exempting health aids for debtors and dependents; and (4) Section 222.29 and 222.30, prohibiting conversion of non-exempt to exempt assets with intent to defraud creditors....

...*483 We disagree with this analysis and certify conflict with Florida Asset. The statutory protection for this type of annuity is not comparable to a homestead exemption or an exemption for head of household wages. See, e.g., art. 10, § 1, Fla. Const.; § 222.11, Fla.Stat....

...oyment but being a single mother with kids it was difficult," did not conclusively establish that the Plaintiff was "providing more than one-half of the support for a child or other dependant," as is required to be identified as head of family under section 222.11(1)(c)....

...7. See RAKUSIN, supra at § 2.05[A][2]. Furthermore, after October 1, 1993, not all wages for personal labor or services of a head of family are completely exempt from garnishment. CREWS, supra at 6-1 (§ 6.27) (noting that prior to October 1, 1993, section 222.11 provided that all wages for personal labor or services of a head of family were completely exempt from garnishment)....

...an exemption claim of Bill E. Branscum (Debtor). The property claimed as exempt are monies which the Debtor earned as a private investigator under the fictitious trade name of Oracle International, P.A. The claim of exemption is based on Fla. Stat. § 222.11, the wage exemption Statute. It is the Trustee's contention that the monies under consideration are not "wages" but earnings from an independent contractor's accounts receivable, thus not within the wage exemption Statute. Florida Statute § 222.11, entitled Exemption of Wages From Garnishment, provides in pertinent part: (1) As used in this section, the term (a) "Earnings" includes compensation paid or payable, in money or a sum certain, for personal services or labor, whether denominated as wages, salary, commission, or bonus....

...The seminal case on this issue of whether the Statute applies to earnings of independent contractors is Patten Package Co. v. Houser, 102 Fla. 603, 136 So. 353 (Fla.1931). In Patten, the Supreme Court of Florida held that the predecessor to Fla. Stat. § 222.11 could not be construed to extend to include monies earned by an independent contractor. Bankruptcy courts in Florida which have considered Patten have reached different conclusions. See e.g. In re Montoya, 77 B.R. 926 (Bankr.M.D.Fla.1987)(Payment of employee wages are exempt under Section 222.11, whereas independent contractor compensation is not); Matter of Glickman, 126 B.R....

...or was an independent contractor was dicta and not determinative of the case. The Eleventh Circuit rejected the debtor's argument and held that monies paid to an independent contractor are not within the scope of the exemption provided by Fla. Stat. § 222.11....

...bor or services." Until recently, the Schlein treatment of this issue by several bankruptcy courts was nearly uniform, with all courts concluding that the monies earned by an independent contractor are not within the exemption provided by Fla. Stat. § 222.11 See e.g....

..."); In re Lee, 204 B.R. 78 (Bankr.M.D.Fla.1996)(debtor's commissions earned as an insurance agent, were not exempt); but see In re Pettit, 224 B.R. 834 (Bankr.M.D.Fla.1998)(Judge Funk)(debtor's compensation as independent contractor was exempt under Section 222.11, rejecting Patten, supra and Schlein....

...) Having reviewed the applicable case law, this Court is satisfied that Schlein represents the controlling law on the issue. Thus, the Debtor's claim of exemption of the monies paid to him as a private investigator for his services are not within the exemption provided by Fla. Stat. § 222.11....

...e is clear and unambiguous, courts generally do not go behind the plain and ordinary meaning unless an unreasonable or ridiculous conclusion would result from a failure to do so. Id. at 573. Such is not the case here. The Trustee relies on Fla.Stat. § 222.11 to support the argument that these accumulated funds are not exempt. Fla.Stat. § 222.11 exempts wages received by the head of the family from attachment or garnishment....

...gal Basis Homestead (837 Ponte $494,000 Art. X, § 4 Fla. Const. Vedra Blvd.) Personal Property $ 1,000 Art. X, § 4 Fla. Const. 1986 Honda $ 1,000 § 222 Fla. Statutes Schwab & Peak IRAs $ 68,996 § 222.21 Fla. Statutes Principal Mutual Annuity N/A § 222.11 Fla. Statutes Insurance Policies with: New York Life $ 11,090 § 222.11 Fla. Statutes *316 Mass. Mutual $ 60,341 § 222.11 Fla. Statutes Prudential Life $ 12,000 § 222.11 Fla....

...§ 222.201(1) and 11 U.S.C. § 522(d)(10)(E). Further, the Debtors contend that the Plan constitutes an annuity and is comprised of earnings of the head of a household, which facts render the Plan independently exempt and immune from creditors under Fla.Stat. §§ 222.11 and 222.14....

...as no problem concluding that Mrs. Morrow and her husband will be able to earn a living to support themselves and their son without the benefit of payments received from the Plan. Next, the Debtors argue that the Plan is exempt pursuant to Fla.Stat. § 222.11 which provides as follows: ....

...IRA account, nor do the Constitution, Art. X, § 4 or the Statutes of the State of Florida, exempt an IRA account. Realizing this, counsel for the Debtors filed an amendment to Schedule B-4 and now claims that these funds are exempt as "wages" under § 222.11, Fla....

...In order to resolve this controversy, the initial inquiry must begin, of course, with the analysis of the true nature of the funds now on deposit in the two IRA accounts. This is so because if the funds on deposit are not wages, they are not within the protective provisions of Chapter 222.11, Fla. Stat. It is the contention of the Debtors that these monies represent wages and, therefore, are exempt by virtue of Fla. Stat. § 222.11 which exempts wages of a head of a household....

...Szuets who admittedly was never the head of the household and also funds earned by Mr. Szuets, which were not derived from wages. Of course, most of the monies deposited in Mrs. Szuets account cannot be claimed as exempt even assuming that they represent her "wages" simply because the wage exemption provided by § 222.11, Fla....

...Unless it is exempted, property of the estate consists of "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541. The Eleventh Circuit has definitively explained that commissions from an independent contractor are not subject to the wage exemptions in section 222.11 of the Florida Statutes....

...Locke no longer owns "Bobbin's Key" nor is he responsible for the care and upkeep. However, pursuant to the rules of the Florida Breeder's Association, he will receive a percentage interest in any winning purse. Locke has claimed this interest as exempt property pursuant to § 222.11, Florida Statutes (providing an exemption for "wages")....

...§ 222.20, Florida Statutes (1977). Instead, the Florida legislature has promulgated its own set of exemptions which may be found in Article X, Section 4, of the Florida Constitution and in Chapter 222, Florida Statutes. One such exemption is set forth in Florida Statute § 222.11, which provides in part: No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this state, when the money or other thing is due for the personal labor or services of such person. Florida Statute § 222.11....

...winnings. This argument is misplaced. The benefit Locke received for his services to the horse was realized upon its sale, and within that sale was the contractual right to a percentage of the future winnings. This clearly falls outside the scope of § 222.11. In claiming this exemption, debtor has misinterpreted § 222.11 to include the proceeds flowing from the potential benefit of a contractual obligation....

...o an insurance salesman were not exempt as money due for personal labor or services under the statute. Certainly, the situation presented by the debtor cannot be said to be so different from that of Malloy to warrant expansion of the narrow scope of § 222.11. CONCLUSION The deferred payment of funds due under a contract is not exempt under § 222.11....

...non-disabled bankrupt . . . [because] a [non-disabled] bankrupt cannot accumulate wages in a savings account while living on the credit of others, and then expect such accumulated wages to be exempt in bankruptcy." Id. Prior to 1985, Florida Statute § 222.11 provided that wages lost their exempt status once they were received and deposited in the bank account. In 1985, however, the Legislature amended section 222.11 by adding an additional sentence which provided, "[T]his exemption shall apply to any wages deposited in any bank account maintained by the debtor when said funds can be traced and properly identified as wages." See Fla. Stat. § 222.11 (1989). Further, in 1993, the Legislature again amended section 222.11 to provide that the funds are exempt for six months after earnings are received by the financial institution if they can be traced and properly identified. See Fla. Stat. § 222.11 (1993)....

...onstruction in favor of providing benefits to injured workers. The Florida Supreme Court noted that the First District Court of Appeals in rejecting the claim of exemption was influenced by the legislative history of the wage exemption in Fla. Stat. § 222.11 (1983), especially the cases which construed the statute prior to its amendment....

...The Trustee claims that the commissions under consideration are payment to the Debtor as an independent contractor and not as wages paid to an employee, and thus do not qualify for the wage exemption allowed a head of household pursuant to Fla.Stat. 222.11....

...The foregoing leads to only one conclusion, which is that the renewal commissions under scrutiny were earned by the Debtor as an independent contractor. Be that as it may, the ultimate question remains whether or not the earnings of an independent contractor is within the scope of the exemption granted by Fla.Stat. § 222.11. The lone Florida Supreme Court decision dealing with this problem was in the case of Patten Package Co. v. Houser, 102 Fla. 603, 136 So. 353 (1931), in which Florida's Supreme Court applied the predecessor of § 222.11, which was Com.Gen.Laws § 5792 (1927). The Bankruptcy Courts in Florida were not unanimous in interpreting the holding of Patten Package, thus in In re Montoya, 77 B.R. 926, 928 (Bankr.M.D.Fla.1987) the Court held that "The payment of wages to an employee are exempt under § 222.11 whereas compensation to an independent contractor is not." On the other hand, in the case of In re Glickman, 126 B.R....

...ot cover exempt earnings of an independent contractor. In support of its conclusion the Schlein Court, cited the case of Refco, Inc. v. Sarmiento, 487 So.2d 75 (Fla. 3d DCA 1986) in which the District Court of Appeals considered the applicability of § 222.11 to commissions which were earned by the Debtor as a commodities brokerage account executive. While the Court in Refco ruled in favor of the Debtor concluding that he was an employee for the purposes of Fla.Stat. § 222.11, the Court pointed out that the ultimate question was whether or not the employee was an employee or an independent contractor. As an additional support for this conclusion, the Schlein Court also relied on the 1985 amendment to § 222.11 which amendment extended the protection of the Statute to include "wages deposited in any bank account" so long as those funds "can be traced and properly identified as wages." In drafting this amendment, the legislature chose to use the te...

...sion. The two Bankruptcy Courts who considered the same issue also concluded that earnings by an independent contractor are not within the provisions provided for by the Statute and barred the earnings of independent contractors from exemption under § 222.11....

...53, 56 (Bankr.M.D.Fla.1994), Judge Briskman adopted the Schlein reasoning in holding that insurance renewal commissions *80 earned by an insurance agent/debtor who acted as an independent contractor did not qualify for the wage exemption allowed by § 222.11....

...surance brokerage business as an independent business man, i.e., an independent contractor. And for this reason the commissions earned by him for the same or the renewal of insurance policies are not within the protection accorded by Florida Statute § 222.11. Accordingly, it is ORDERED, ADJUDGED AND DECREED that the Trustee's Objection to the Debtors' Claim of Exemptions be, and the same is, hereby sustained and the renewal commissions are not subject to the exemption allowed by Section 222.11, Florida Statutes, and are subject to administration by the Trustee....

...The issues before the Court are whether the insurance renewal commissions received by Mr. Braddy are property of his estate under § 541 of the Bankruptcy Code and whether Mr. Braddy may exempt those commissions under Florida's wage exemption statute, § 222.11....

...Having considered the arguments of counsel for both parties, the evidence presented, and for the reasons set forth below, I sustain the Trustee's objection and hold that the renewal commissions are property of the estate and that those commissions may not be exempted as wages under § 222.11....

...r whether they are post-petition earnings and are not property of the estate under 11 U.S.C. § 541. The second issue is whether the renewal premiums, if found to be property of the estate, can be exempted under Florida's wage exemption statute. See § 222.11, Fla....

...ients. Therefore, under § 541(a)(6), the commissions that Mr. Braddy receives are property of his estate. If renewal commissions are property of the estate, the next question is whether the debtor may exempt those commissions under Florida Statutes § 222.11....

...While § 522(d) of the Bankruptcy Code lists the property which is exempt under federal law, § 522(b)(1) allows each state to "opt out" of the federal scheme and to adopt its own list of exempt property. See 11 U.S.C. §§ 522(b)(1), (d) (1998). Florida exempts wages from garnishment in Florida Statutes § 222.11. See § 222.11, Fla. Stat. (1998). Under § 222.11, if a debtor is the head of his family and his disposable earnings are less than $500 per week, his disposable earnings are exempt from garnishment. See § 222.11(2)(a), Fla. Stat. Cases determining the applicability of § 222.11 usually make a distinction between employees and independent contractors. Many cases hold that in order to fit within the purview of § 222.11, a debtor must be classified as an employee, not as an independent contractor....

...not pay any Social Security or withholding taxes on the commissions he received. See id. at 166. For these reasons, the court found that the debtor was an independent contractor and not an employee. As such, he was not entitled to the protection of § 222.11. See id. at 167; see also In re Moriarty, 27 B.R. 73, 74 (Bankr.M.D.Fla.1983) (finding that real estate agent debtor who was paid solely by commission, paid no taxes, and provided for his own expenses was independent contractor and not entitled to § 222.11 exemption). The court held that § 222.11 applies only to employees and not to independent contractors. See id.; see also In re Porter, 182 B.R. 53, 56 (Bankr.M.D.Fla.1994) (following the Eleventh Circuit's decision in In re Schlein, 8 F.3d 745, 755 (11th Cir.1993), the court found that in order to fall under § 222.11, the debtor must be an employee and not an independent contractor); cf. Refco, Inc. v. Sarmiento, 487 So.2d 75, 76 (Fla. 3d DCA 1986) (finding that debtor was employee for purposes of § 222.11 because his work was supervised and subject to the approval of his supervisor). Similarly, the same court found two years later that independent contractors are not entitled to the wage exemption under § 222.11....

...All were responsible for all of the costs of their business, and all paid no Social Security or other taxes on the commissions they received. Under the Hanick and Lee approach, Mr. Braddy is an independent contractor and, therefore, does not receive the wage exemption under § 222.11. CONCLUSION Based upon the foregoing analysis, Mr. Braddy's renewal commissions are property *484 of his estate, and he is an independent contractor for purposes of § 222.11. Therefore, the commissions are property of Mr. Braddy's bankruptcy estate, and he cannot exempt them under § 222.11....

his disposable earnings in accordance with section 222.11, Florida Statutes (2007), we reverse the circuit

...Morine (the Debtor) is one of the challenges by Diane *481 Jensen, the trustee, of the Debtor's claims of exemption. The trustee in her initial Objection (Doc. No. 19) challenged the value of the personal properties claimed as exempt, especially the exemption claimed under Fla. Stat. 222.11, dealing with the wage earner exemption....

...Gennet, Boca Raton, Fla., Trustee. ORDER ON AMENDED EXEMPTION CLAIM THOMAS C. BRITTON, Chief Judge. The debtors have amended (CP9) their Schedule B-4 to claim as an additional exemption from the claims of creditors: "Insurance settlement proceeds Fla.Stat. 222.11 full value arising from an automobile accident which occurred on December 11, 1985....

...Unliquidated tort choses in action are not exempt from the claims of creditors under Florida law or from property of the estate under the present Code. In re Mills, 46 B.R. 525 (Bankr.S.D.Fla.1985). Debtors in effect concede this point by arguing only that the settlement represents money exempt under Fla.Stat. § 222.11 ("wages deposited in any bank account maintained by the debtor when such funds can be traced and properly identified as wages.")....

...Her motion was accompanied by two affidavits, one executed by Hill herself, and one executed by her husband Thomas Hill. Because we find the affidavits sufficient to establish the head of family exemption provided by section 222.12, Florida Statutes (1997), we reverse. Section 222.11(2)(b), Florida Statutes (1997), provides that the disposable earnings of a family head may not be garnished except by written consent. This statute defines a "head of family" as one "who provides more than one-half of the support for a child or other dependent." § 222.11(1)(c)....

...Lacy Mahon, Jr., Mahon, Farley & Vickers, Jacksonville, for appellant. Elliot Zisser, Zisser & Robison, Jacksonville, for appellee. *1341 ERVIN, Judge. The primary issue presented by this appeal is whether 42 U.S.C.A. § 659 [1] supersedes Florida Statutes 222.11 and 222.12....

...This appeal followed. Appellant argues that the trial court's order denying the husband's motion to dismiss and granting the wife's petition for writ of garnishment was error because the trial court necessarily concluded that 42 U.S.C.A. § 659 supersedes § 222.11 and § 222.12....

...port, or other orders in proceedings for dissolution, alimony, or child support; * * *" The above section is derived from a statute first enacted by the legislature in 1901 [4] and was intended by the legislature to stand as an exception to sections 222.11 and 222.12, by allowing garnishment of any person's *1342 wages to enforce orders or judgments of the court for alimony, suit money or child support....

...ismiss is AFFIRMED. MILLS, J., concurs. BOYER, C.J., dissents. BOYER, Chief Judge, dissenting. I respectfully dissent. The issue framed and briefed by the attorneys for the respective parties is whether 42 U.S.C.A. § 659 supersedes Florida Statutes 222.11 and 222.12....

...Appellee argues in its brief, and the trial judge apparently ruled, that Title 42 U.S.C.A. § 659 permits garnishment for the recovery of child support and alimony owed by members of the armed services and other federal employees regardless of contrary state law, specifically Florida Statute 222.11....

...The effect of the federal act is nothing more than to waive sovereign immunity of the United States government. ( Golightly v. Golightly, 410 F. Supp. 861, 863 (D.Neb. 1976)) There is nothing in the federal act contrary to nor in derogation of Florida Statutes 222.11 and 222.12....

...nserted the word "judgment" when the statute was amended, I would construe the statute according to its literal verbiage and restrict its application to orders. Accordingly, if the trial judge held that 42 U.S.C.A. § 659 supersedes Florida Statutes 222.11 and 222.12, as I conceive he did, I would reverse....

...ke manner and to the same extent as if the United States were a private person, to legal process brought for the enforcement, against such individual of his legal obligation to provide child support or to make alimony payments." [2] Florida Statutes 222.11 provides as follows: "222.11 Exemption of wages from garnishment....

...[4] I had done so because Denison already admitted the funds were owed to the Plan Administrator. MMS further contends that Gleason filed the Claim to interfere with the implementation of my prior orders. The purported legal basis for the asserted exemption, Fla. Stat. § 222.11(b) [5] plainly did not apply....

...show cause why his conduct in filing the Claim on Denison's behalf should not be sanctioned by the imposition of non-monetary sanctions. SO ORDERED. NOTES [1] [ECF. No. 537], ¶ 1. [2] Id. [3] See [ECF No. 510]. [4] See [ECF No. 532]. [5] Fla. Stat. § 222.11(b) refers to garnishment and attachment and is utterly inapplicable to court orders sequestering and directing disbursement of funds....

...which allows an individual debtor to exempt, in addition to other exemptions allowed under state law, any property listed in Subsection (d)(10) of § 522 of the Bankruptcy Code, these wages are exempt. The Debtors' claim of exemption has two bases. The initial claim of exemption is based upon § 222.11, Fla. Stat. which exempts wages due to the head of a family residing in Florida for personal labor or services of such person. The Debtor relies on § 222.11 of the Florida Statutes and § 522(d)(10)(E) of the Bankruptcy Code for its alternative basis for its claim of exemption....

...The Debtor contends that the following phraseology, "on account of age or length of service" controls this situation. As to the Debtor's first contention that the compensation should be accorded the treatment of wages and thereby exempt pursuant to § 222.11 Fla....

...He claimed the assets in the possession of the garnishees were exempt, pursuant to chapter 222, Florida Statutes (2004). Specifically, as to assets possessed by four of the garnishees, Ponsoldt claimed an exemption for wages owed to him as "head of family," pursuant to section 222.11, Florida Statutes (2004)....

...4th DCA 2004) (citations omitted). Chapter 77 sets forth general procedures for garnishment. Chapter 222, on the other hand, exempts certain assets and sources of income from garnishment. See Miami Herald Publ'g Co. v. Payne, 358 So.2d 541, 542 (Fla.1978). Section 222.11 establishes the "head of family" exemption. § 222.11(1)(c), (2)(a) & (b), (3), Fla....

...ty levied upon by writ of execution are tried, and the money or thing attached shall remain subject to the process until released by the judgment of the court which shall try the issue. The exemption to which the above section refers is contained in Section 222.11, Florida Statutes (1979): No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family r...

...a Statute § 769.05. This exemption is found in Florida's Hazardous *643 Occupations Act. Next, the Debtor claims that that portion of any prospective award which constitutes either wages or maintenance and cure is exempt pursuant to Florida Statute 222.11....

...r maintenance obligation arising from divorce." In re Sea Ray Marine, 105 B.R. 12, 13 (Bankr.E.D.La.1989). Accordingly, to the extent the state court awards maintenance and cure, it is also exempt under 11 U.S.C. § 522(d)(10)(D). C. FLORIDA STATUTE § 222.11 The Debtor further claims that any award for either wages or maintenance and cure is exempt pursuant to Florida Statute § 222.11. The Trustee argues that this exemption is limited to any back wages due to, and recovered by, the Debtor. The Court finds that Fla.Stat. § 222.11 does not distinguish between awards for either past or prospective wages and that it is strictly limited to wages. Section 222.11 provides in relevant part: (2)(a) All of the disposable earnings of a head of family whose disposable earnings are less than or equal to $500 a week are exempt from attachment or garnishment. Florida Stat. 222.11(2)(a) (1996). Therefore, to the extent any maintenance and cure awarded is expressly designated as unpaid wages, that portion of the award would be exempt under Fla.Stat. 222.11....

...e. 2. To the extent any recovery from the Lawsuit results in maintenance and cure, such award is exempt pursuant to 11 U.S.C. §§ 522(d)(10)(C) & (D). To the extent the maintenance and cure represents unpaid wages, it is exempt under both Fla.Stat. 222.11 and 11 U.S.C. § 522(d)(10)(C). 3. To the extent any portion of the award represents lost wages, either past or prospective, that portion of the award is exempt under Fla.Stat. § 222.11. Alternatively, any back wages awarded are exempt under Fla. *646 Stat. § 222.11 and any future wages recovered are not property of the Debtor's estate....

...It is the Trustee's contention that the commissions due to the Debtor are not wages but commissions earned by an independent contractor and they are not within the wage exemption accorded to a person who qualifies to be head of household by Fla.Stat. § 222.11....

...procured for Cole prior to the filing of the Petition. On November 23, 1993, the Trustee timely filed an Objection to Claim of Exemption. It is the Trustee's contention that the commissions claimed as exempt are not within the exemption of Fla.Stat. § 222.11 [1] , which provides in pertinent part: No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a...

...124 (Bankr. M.D.Fla.1991). In Moriarty, a case which involved facts almost identical to those in the present instance, this Court held that a real estate agent's commissions, as compensation to an independent contractor, were not exempt under Fla.Stat. § 222.11....

...Applying these principles to the undisputed facts, this Court is satisfied that the nature of the Debtor's occupation as a real estate agent is that of an independent contractor and the monies due to him are not wages within the meaning of Fla.Stat. § 222.11....

...The final judgment is reversed and the cause remanded for compliance with the statutory notice requirement and for trial. Reversed and remanded. NOTES [1] The bank's answer does not reveal the form of joint ownership of the accounts. [2] The debtor also relies on section 222.11, Florida Statutes (1993), although it is not clear that the funds at issue here are covered by that section....

...In addition, the same preemption analysis would apply to Section 222.21 whether or not the protection was sought in bankruptcy court or in state court. See Mackey, supra, 486 U.S. at 835, 108 S.Ct. at 2188. Finally, Rosenquist also argues that his interest in the Harris Plan is exempt as wages pursuant to Section 222.11, Florida Statutes 1989, despite the fact that Sections 222.21 and 222.201 have been preempted by ERISA, as the court has now held. Although Section 222.11 permits the head of a family to exempt his wages, the final sentence of that section provides that "[t]his exemption shall apply to any wages deposited in any bank account maintained by the debtor when said funds can be traced and prop...

...eafter until paid in ful. 6. In the event of Defendant(s) default under the terms of the Stipulation and Plaintiff obtains an execution order, the Defendant(s) hereby agree(s) to waive any garnishment defenses that are waivable under Florida Statute 222.11....

...Holmes in his paychecks under a line item labeled "gratuities" See [DE 18]; [DE 28, at ¶ 4]. Mr. Holmes claimed $3,566.03 in his Wachovia account ending in 4758 as exempt "wages" under Florida law. See [DE 28, at ¶ 5]. The Chapter 7 Trustee objects to the claimed exemption pursuant to Florida Statute § 222.11 [DE 25, at ¶ 2]....

...Subsequently, an Order Granting In Part Trustee's Objection to Claimed Exemptions [DE 29] was entered leaving two issues for review under this Order: 1. What portion of the $3,455.59 [1] in the disputed account are allocable to "earnings", as that term is defined under Florida Statute § 222.11? 2. Are tips and gratuities considered "earnings" within the meaning of Florida Statute § 222.11 when they are: a....

...collected directly by the Debtor's employer from customers as a "service charge" upon all of the Debtor's sales; b. the service charges are then remitted to the Debtor in his paycheck; and c. the money is reported as income to the Debtor under a line item labeled "gratuities." The relevant portions of Florida Statute § 222.11 "Exemption of wages from garnishment" are: (1) As used in this section, the term: (a) "Earnings" includes compensation paid or payable, in money of a sum certain, for personal services or labor whether denominated as wages, salary, commission, or bonus ....

...(3) Earnings that are exempt under subsection (2) and are credited or deposited in any financial institution are exempt from attachment or garnishment for 6 months after the earnings are received by the financial institution if the funds can be traced and properly identified as earnings. . . FLA. STAT. ANN. § 222.11 (West 2009) (emphasis added)....

...ot exempt. The Trustee and the Debtor merely stipulated that the account in dispute contained $3,455.59 on the petition date. See [DE 29, at ¶ 2]. Therefore, whether the total amount of $3,455.59 in the account is exempt pursuant to Florida Statute § 222.11 is analyzed below. Discussion When determining whether commissions are considered exempt earnings under Florida Statute § 222.11, courts have often looked to whether the Debtor seeking the exemption received those commissions as an employee or independent contractor. In re Schlein, 8 F.3d 745, 756 (11th Cir.1993) (only an employee can earn money for personal labor or services which qualify as "earnings" under FLA. STAT. § 222.11); In re Lee, 190 B.R. 953, 955 (Bankr.M.D.Fla.1995) (commissions earned by an independent contractor are not exempt under FLA. STAT. § 222.11)....

...224 B.R. 834, 839-840 (Bankr.M.D.Fla.1998). There, a debtor filed a voluntary Chapter 7 petition and claimed monthly commissions of $12,500, which were regularly deposited into the debtor's bank account as exempt property pursuant to Florida Statute § 222.11. Pettit, 224 B.R. at 836. Subsequently, a secured judgment creditor filed an objection to the debtor's exemptions. Id. The Pettit court held that the debtor's monthly commissions were exempt under § 222.11 because the commissions arose (i) from an arm's length, verbal employment agreement and (ii) can be traced and properly identified as Pettit's earnings....

...The Trustee has not argued that the Debtor's gratuities could not be properly traced and identified as earnings. The Trustee has failed to establish prima facie evidence that the Debtor's claimed exemptions should be denied. The Debtor's gratuities are considered earnings and thus exempt under Florida Statute § 222.11 because they were earned as (i) compensation paid, in money of a sum certain, for personal labor under an arm's length employment agreement and (ii) can be properly traced and identified as earnings....

...The contention is that the prepetition fees were paid from prepaid salary received by each debtor husband for personal services to be performed subsequently. It is argued that the services were subsequently performed and not otherwise compensated. Florida Statute § 222.11 prohibits attachment or garnishment: "to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this State, when the money or other thing is due for the personal labor or services o...

...o pay their attorneys, the money ceased to be exempt from the process of this or any other court. The exemption from court process provided by the Florida statute was not, as I interpret the statute, intended to apply to advances on future earnings. Section 222.11 applies only to wages which are owing, Financial & Inv....

...very or collection of a debt, which exemption may not be waived. In determining that this statute did not apply to exempt workers' compensation settlement funds received and deposited into a bank account, the circuit court compared section 440.22 to section 222.11, Florida Statutes. Prior to 1985, section 222.11 provided that no writ of attachment or garnishment or other process would reach any money or other thing "due to any person" who is the head of a family residing in Florida, when the money or other things "due" are for the personal labor or services of such person....

...Blazer Financial Services, Inc., 369 So.2d 987 (Fla. 4th DCA 1979), reviewing courts held that the plain wording of that statute did not apply to funds received for personal services and then deposited in a bank account. Thereafter, the Legislature twice amended section 222.11....

...The current version of the statute provides that the exemption applies to any wages deposited in any financial institution when the funds can be traced and properly identified as wages, and further that such funds are exempt for six (6) months after the earnings are received by the financial institution. § 222.11(3), Fla.Stat. (1993). The circuit court concluded that "the [L]egislature has found no necessity to insert into the Workers' Compensation exemption statute additional language that would prescribe a tracing provision similar to the one inserted into Section 222.11." We recognize that the bankruptcy court in In re Fraley, 148 B.R....

...1992), relied upon policy grounds and "the intention to protect beneficiaries" to construe the "due or payable" phrase in section 440.22 to exempt settlement funds that have already been deposited into a bank account. We are constrained, however, by the Florida decisions interpreting the previous version of section 222.11, and by the Legislature's failure to modify the "due or payable" language of section 440.22 in the face of those decisions. Moreover, we note that the six-month limitation inserted by the Legislature when it amended section 222.11 is an integral part of the extension of the exemption to bank accounts....

...March 31, 2010. *849 Kenneth D. Herron, Jr., Orlando, FL, for Debtors. FINDINGS OF FACT AND CONCLUSIONS OF LAW ON TRUSTEE'S OBJECTION TO DEBTORS' EXEMPTION CLAIM KAREN S. JENNEMANN, Bankruptcy Judge. The debtors claim an exemption under Florida Statute Section 222.11 for funds they contend represent Mr. McDermott's "earnings" as a head of family. The Chapter 7 trustee objects, arguing the debtors cannot claim exemption under Section 222.11 because the funds do not meet the statutory definition of "earnings" but instead are equity withdrawals from the debtors' business....

...The debtors also are listed as creditors holding an unsecured claim for a "loan to business" in the amount of $72,000 on GLR's Schedule F-Creditors Holding Unsecured Nonpriority Claims (Trustee's Ex. 5). In their Schedule C (Doc. No. 1), the debtors claimed an exemption under Section 222.11 for funds held in a SunTrust checking account in the amount of $54,079.59....

...McDermott's pay from GLR constitute exempt "earnings." The debtors, in response, assert that Mr. McDermott is the head of family, that the funds in the SunTrust account are Mr. McDermott's earnings, and that Mr. McDermott has not agreed in writing that any portion of his earnings could be attached or garnished as required by Section 222.11(2)(b). The parties agree that Mr. McDermott is a head of family as defined in Section 222.11(1)(c). So the only issue before the Court is whether the funds Mr. McDermott received from GLR and deposited into the SunTrust account constitute "earnings" subject to exemption under Section 222.11(1)(a). The objecting party has the burden of proving that an exemption claimed by the debtor is not properly claimed. Fed. R. Bankr.P. 4003(c)(2005). In this case, the debtors are claiming an exemption under Section 222.11, which provides that earnings of a head of family, such as Mr....

...McDermott, are not subject to claims of creditors. [7] Earnings are defined to include: "compensation paid or payable, in money of a sum certain, for personal services *851 or labor whether denominated as wages, salary, commission, or bonus." Fla. Stat. § 222.11(1)(a) If the funds Mr. McDermott received from GLR fit within the definition of earnings under Section 222.11, they are exempt....

...In order to sustain the objection, the trustee therefore must show that Mr. McDermott's paychecks do not qualify as earnings from personal services. Zamora, 187 B.R. at 784. Two Florida bankruptcy courts have addressed whether compensation paid to a debtor from the debtor's own business qualifies as exempt earnings under Section 222.11....

...any salary when the business was low on cash. Both courts found the amount of control the respective debtor exerted over the debtor's business sufficient to distinguish the debtor's activities from the kind of employment relationship contemplated by Section 222.11....

...B.R. at 785. The District Court of Appeal of Florida, Fourth District, also has ruled on this issue. Brock, 832 So.2d 209. Drawing from both Manning and Zamora, the Brock Court stated that "[t]o decide whether monies from employment qualify for the section 222.11(2)(b) exemption, the relevant inquiry is often whether a person's employment is a salaried job or is in the nature of running a business." Under nearly identical facts as the cases cited above, the court held the business owner's earnings did not qualify for the exemption because he was running a family business....

...nds the reasoning behind them persuasive. A debtor who owns and runs his own business, without an arms-length employment agreement, and who has almost complete control and discretion over the timing and amount of his own compensation, cannot rely on Section 222.11 to exempt the funds....

...McDermott $72,000 in the months leading up to both the debtors' bankruptcy petition and GLR's bankruptcy petition was an attempt to pay themselves before they paid their own or GLR's legitimate creditors. Under no scenario do the checks Mr. McDermott received from GLR qualify as "earnings" under Section 222.11(1)(a). The debtors are trying to disguise an equity withdrawal as "earnings" to keep funds rightfully due to their creditors. The Court will sustain the trustee's objection. The amount of $54,079.59 is not exempt from claims of creditors under Section 222.11....

...On appeal, Creditor argues that the claim of exemption should not have been granted because the head of household garnishment exemption does not apply to non-residents. We reject this contention because Creditor relies on an outdated version of the statute. Section 222.11, Florida Statutes (2013), provides a garnishment exemption for the head of a family....

...This section exempts the head of family’s disposable earnings of $750 a week or less from garnishment and likewise exempts disposable earnings greater than $750 per week, unless the debtor agrees to waive the protection from garnishment in writing. § 222.11(2)(a)-(b), Fla....

...The court looks at the totality of the circumstances to determine whether the exemption is applicable. Id. In this case, Debtor claimed a “head of family” exemption as a “natural person who is providing more than one-half of the support for a child or other dependent.” § 222.11(1)(c), Fla. Stat. (2013). Debtor does not dispute that he has lived in South Carolina for the past seven years; he correctly points out that the current version of section 222.11 applies the exemption to non-residents of Florida. Prior to 1993, section 222.11 included the following language: No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this state, when the money or other thing is due for the personal labor or services of such person. -2- § 222.11, Fla. Stat. (1991) (emphasis added). In 1993, the statute was amended and the requirement that the head of family “resid[e] in this state” was removed. See Ch. 93-256, § 2, Laws of Fla. The current version of section 222.11 refers to the “head of a family” without geographical limitation. In construing section 222.11, “our first obligation is to give the words used by the legislature their plain meaning.” Mazzella v....

the exemption of wages from garnishment under § 222.11 Fla.Stat. (1975). We affirm. The appellant refers

claim of exemption from garnishment under F.S. § 222.11, F.S.A. This section together with F.S. § 222

commissions under Florida’s wage exemption statute, § 222.11. Having considered the arguments of counsel for

were not exempt from execution as wages under section 222.11, Florida Statutes. Sunshine argues that James

garnishment under the provisions of F.S.1967, Section 222.11, F. S.A.2 The court entered its order discharging

...On their schedule of exemptions, the Debtors claimed personal property with a total value of $10,408.54 as exempt. The exemptions were claimed pursuant to Fla. Const. art. X, § 4(a)(2), Fla. Stat. § 222.25(4), Fla. Stat. § 222.25(1), and Fla. Stat. § 222.11(2)(b), the statute that provides an exemption for certain wages....

...emptions (Doc. No. 26) (the "Objection") and Michael and Susan Stroups' ("Debtors") Response To Trustee's Objection (Doc. No. 32) ("Response"). Debtors claimed an exemption for deferred compensation in the amount of $118,485.63 under Florida Statute Section 222.11....

...s sustained. Background. On February 14, 1997 (the "Petition Date"), the Debtors filed a joint petition for relief under Chapter 7 of the Bankruptcy Code. In their Schedule C (Doc. No. 7), the Debtors claimed an exemption pursuant to Florida Statute Section 222.11 of an unknown value [2] for deferred compensation from OB-GYN Specialists, P.A....

...Trustee's Objection. The Trustee initially objected to the Debtors' exemption claim for deferred compensation because the Trustee was not provided with sufficient information to determine whether the compensation fell within the exemption pursuant to Florida Statute Section 222.11....

...During the hearing, the Trustee raised three new objections to the Debtors' exemption claim. First, the Trustee claimed that the deferred compensation is really a distribution from OB-GYN in view of Dr. Stroup's ownership interest and many years of service in OB-GYN. Second, Florida Statute Section 222.11 does not exempt deferred compensation. Third, the current version of Florida Statute Section 222.11 defines earnings as a "sum certain" which does not include a distribution determined by a formula [5] . Exemption under Florida Statute Section 222.11 for Deferred Compensation. The objecting party has the burden of proving that the exemptions claimed by the debtor are not properly claimed. Fed.R.Bankr.P. 4003(c)(1991). In this case, the Debtors are claiming an exemption pursuant to Florida Statute Section 222.11 which provides that earnings of a head of household, such as Dr....

...Earnings are defined to include: "compensation paid or payable, in money of a sum certain, for personal services or labor whether denominated as wages, salary, commission, or bonus." If the deferred compensation awarded in Dr. Stroup's Employment Agreement fits within the definition of earnings under Florida Statute Section 222.11, the amount is exempt. Therefore, in order to sustain the Objection, the Trustee must show that Dr. Stroup's deferred compensation does not qualify as earnings from personal services. In re Zamora, 187 B.R. 783, 784 (Bankr.S.D.Fla.1995). Although Florida Statute Section 222.11 was amended in 1993, prior case law interpreting the type of income protected by the statute remains applicable....

...employer were not exempt since the funds were more like passive income than wages. In re Wheat, 149 B.R. 1003, 1008 (Bankr.S.D.Fla.1992), citing Harrington v. Limbey (In re Harrington), 70 B.R. at 302-303. These courts reasoned that Florida Statute Section 222.11 was designed to protect the "fruit of one's labor for the benefit of his family." In re Parker, 147 B.R. at 812; quoting In re Locke, 99 B.R. 473, 474 (Bankr. M.D.Fla.1989). *540 Florida bankruptcy courts also are in agreement that severance pay in its various forms is not considered "earnings" under the protection of Florida Statute Section 222.11....

...Limbey (In re Harrington), 70 B.R. 301, 303 (Bankr.S.D.Fla.1987); In re Howe, 381 F.Supp. 1025, 1026 (N.D.Fla.1974). This is because the debtor has not performed any personal services or labor after termination which is necessary to obtain the exemption protection under Section 222.11. Cf., In re Powers, 98 B.R. 577, 579 (Bankr.M.D.Fla. 1989). Two Florida bankruptcy courts have discussed the exemption of deferred compensation under the former version of Section 222.11....

...In each of these cases, the debtors or their employers actually saved, or deferred, a portion of their annual compensation pending the employee's termination or retirement. However, in both cases, the bankruptcy court found the funds did not qualify as "wages" subject to exemption under the older version of Section 222.11....

...Once the debtor made the election, the debtor could not revoke his election to defer his compensation. Id. Actual earnings were segregated for the benefit of the debtor. Analysis. The only issue raised by the Objection is whether the deferred compensation are "earnings" as defined by Section 222.11....

...Stroup earned and is payable only when he leaves or retires. Thus, the deferred compensation is more akin to severance pay or a dividend as a return on Dr. Stroup's ownership interest. Accordingly, the money Dr. Stroup is receiving is not the "fruit of his labor" which is necessary to get the protection of Section 222.11. Since the deferred compensation paid to Dr. Stroup is really severance pay or a payment in the nature of a dividend not within the protection of Section 222.11, the Trustee has established that his Objection should be sustained. Conclusion. The Debtors' exemption claim for deferred compensation in the amount of $118,485.63 is not exempt from claims of creditors under Section 222.11....

...Stroup's employment with OB-GYN terminated on January 3, 1997. Thus, Dr. Stroup received his base salary for approximately two months after he stopped working for OB-GYN. Trustee's Exhibit 3. [5] Neither party addressed the issue of whether the pre-1993 or the current version of Florida Statute Section 222.11 applies to this case....

...Trustee's Exhibit I. However, the formula in the Employment Agreement uses the prior year from which Dr. Stroup left OB-GYN to calculate the amount of deferred compensation. Thus, under the rationale of In re Sloan, the current version of Florida Statute Section 222.11 applies....

...[6] The fact that a formula is used to calculate the amount of the deferred compensation does not make the determination of the sum uncertain. Rather it just requires mathematical computations to arrive at a definite sum. As such, the use of a formula to calculate earnings may still result in a sum certain as required by Section 222.11.

from garnishment that may be asserted under section 222.11, Florida Statutes (1979), when money is due

to dissolve the writ, asserting that under section 222.11, Florida Statutes (1997), the funds were exempt

...Menotte's ("Trustee") Objection to Claimed Exemptions ("Objection"), wherein the Trustee objected to David Ari Weinshank's (the "Debtor") claim that funds in his Washington Mutual bank account qualify for exemption as traceable earnings deposited into a financial institution pursuant to Florida Statutes § 222.11(2)(c) and (3)....

...on October 17, 2008. The Debtor's schedules disclose that on the petition date, the Debtor had an interest in a bank account at Washington Mutual with a scheduled balance of $4,500.00. The Debtor claimed this amount as exempt pursuant to Fla. Stat. § 222.11(2)(c), Art....

...The Trustee's Objection asserts that the funds on deposit at Washington Mutual are not exempt because the Debtor is not a head of family and seeks turnover of the subject funds. The Debtor concedes that the $197.63 balance in the Washington Mutual savings account does not qualify for exemption under § 222.11(3) because the funds have been on deposit for more than six months. CONCLUSIONS OF LAW The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and 28 U.S.C. § 157(b). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B). A. Florida Statutes § 222.11 The question before the Court is whether the Debtor can apply Florida Statutes § 222.11(2)(c) and (3) to exempt funds on deposit in his Washington Mutual checking account as of the petition date. The Trustee maintains that the § 222.11(3) exemption for qualified earnings on deposit in a financial institution is not available to the Debtor because he is not a head of family. However, as discussed below, the Court *416 finds that the Debtor is entitled to the exemption based upon a plain reading of the statute. Fla. Stat. § 222.11 "Exemption of wages from garnishment" provides: (1) As used in this section, the term: (a) "Earnings" includes compensation paid or payable, in money of a sum certain, for personal services or labor whether denominated as wages, salary, commission, or bonus....

...r the earnings are received by the financial institution if the funds can be traced and properly identified as earnings. Commingling of earnings with other funds does not by itself defeat the ability of a head of family to trace earnings. Fla. Stat. § 222.11 (2009). In this case, it is undisputed that the Debtor is not a head of family as defined in § 222.11(1)(c), and that the subject funds represent earnings paid to the Debtor within six months of the Debtor's bankruptcy that are traceable into his Washington Mutual checking account. While courts determining contested matters pursuant to § 222.11 have considered whether someone is a head of family, what types of income constitute "earnings" under the statute, and whether such funds can be traced, [2] there appears to be no case law determining whether the exemption provided for in § 222.11(2)(c) and (3) is available to a debtor who is not a head of family....

...However, if the statutory language is ambiguous, courts may examine extrinsic materials, including legislative history to determine legislative intent. Shotz, 344 F.3d at 1167 ( citing Fed. Reserve Bank of Atlanta v. Thomas, 220 F.3d 1235, 1239 (11th Cir.2000)). The Court finds that the language of Fla. Stat. § 222.11(2) and (3) is unambiguous with regard to the dispute in this case....

...been credited or deposited into a financial institution, and which can be traced and identified as earnings, are exempt for six months after receipt by the financial institution. The Court finds nothing in the statute that would limit application of § 222.11's exemption provisions *418 to situations involving only a "head of family"....

...Rational Result The Court notes that "the plain meaning rule is not to be blindly applied if application leads to an absurd or futile result." American Bankers Ins. Group v. United States of America, 408 F.3d 1328, 1334 (11th Cir.2005). The Court finds that a plain reading of Fla. Stat. § 222.11 does not lead to an absurd result....

...Dezen, 76 So.2d 792, 794 (Fla.1954)) ("In formulating its exemption laws the State has an interest in preventing `owners of exempt property and their families' from being `reduced to absolute destitution, thus becoming a charge upon the public.'"). Section 222.11 permits a head of family whose disposable earnings do no exceed $500.00 per week to exempt all of his earnings from garnishment or attachment....

...A person other than a head of family is unable to exempt the first $500 per week of disposable earnings and a creditor of such an individual is not required to obtain an agreement in writing before garnishing the individual's disposable earnings up to the limits of 15 U.S.C. § 1673. Thus, Fla. Stat. § 222.11 protects a higher proportion of a head of family's disposable earnings as compared to a person who is not a head of family....

...head of family bears additional responsibilities and support obligations for their dependents. Thus, a plain reading of the statute produces a rational result rather than an absurd result. D. Ambiguity? Although the Court finds that the language of § 222.11 is plain with regard to this dispute, there does exist an ambiguity in the statute....

...oid, or insignificant.'" Pugliese, 550 F.3d at 1303 ( quoting TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) ( quoting Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001))). The current version of § 222.11 with its enumerated sections and definitions became effective in October 1993 (the "1993 Amendment")....

...However, the existence of this internal inconsistency does not negate the Court's findings herein. D. Trustee's Remaining Arguments The Court finds the Trustee's remaining arguments unpersuasive. The Trustee argues that allowance of a wage exemption for a non-head of family pursuant to § 222.11(2)(c) is tantamount to adopting a federal exemption in the Consumer Credit Protection Act which the Florida Legislature did not intend. However the Court finds that if the Florida Legislature intended to deny a wage exemption to a person who is not a head of family, it could have done so. Section 222.11 is clear and must be construed as written....

...s own exemptions. The exemptions available to Floridians are generally found in Fla. Stat. § 222.01 et. seq. That the Florida Legislature incorporated the Consumer Credit Protection Act's limits on garnishment into Florida's scheme of exemptions in § 222.11 does not render the Consumer Credit Protection Act an independent source of exemptions that is in conflict with the Bankruptcy Code and Florida law as the Trustee's argument suggests....

...ulties of tracing hypothetical earnings into a hypothetical bank account. However, the Court notes that the burden of proof to solve any such hypothetical tracing problems would fall to the Debtor. CONCLUSION Based upon a plain reading of Fla. Stat. § 222.11 and the undisputed facts of this matter, the Court finds that even though the Debtor is not a head of family, he may exempt funds deposited into his *421 Washington Mutual checking account within six months of his bankruptcy filing that can be traced and properly identified as earnings....

...In the case of earnings for any pay period other than a week, the Secretary of Labor shall by regulation prescribe a multiple of the Federal minimum hourly wage equivalent in effect to that set forth in paragraph (2). 15 U.S.C. § 1673(a). [4] The prior version of § 222.11 stated: No writ of attachment or garnishment or other process shall issue from any of the courts of this state to attach or delay the payment of any money or other thing due to any person who is the head of a family residing in this state,...

...is providing more than one-half of the support for a child or other dependent. This exemption shall apply to any wages deposited in any bank account maintained by the debtor when said funds can be traced and properly identified as wages. Fla. Stat. § 222.11 (1992).

wages for personal labor or services created by Section 222.11, Florida Statutes (1981), appellant filed his

writ, asserting as defenses that pursuant to Section 222.11, Florida Statutes (1971), the husband’s wages

...See also, Brody, 3 F.3d at 39 [the status of a payment under state law is relevant but not dispositive]. In this case, the state court issued a writ of garnishment against the lump sum alimony obligation. Although not exempt as wages within the meaning of Section 222.11, Florida Statutes, alimony payments are exempt from garnishment....

...(x) 1999 Ford Expedition (joint) valued at $2,500.00. The Debtors claim these assets as fully exempt in Schedule C. They claim the SunTrust and Wachovia business checking accounts and the Wachovia personal checking account as exempt pursuant to Fla. Stat. Section 222.11....

...ntory exceed the allowable exemption amounts. 3. The Wachovia account balances listed in Schedules B and C are inaccurate as of the Petition Date. 4. The Debtors are sole proprietors and are ineligible to claim wage exemptions pursuant to Fla. Stat. Section 222.11....

garnishment judgment for a $60 wage claim, citing section 222.11, Florida Statutes, the head-of-family exemption

obligation was not subject to garnishment because section 222.11, Florida Statutes, exempts wages due for personal

...ion by the Trustee is *597 governed in States which opted out of the Federal exemptions pursuant to 11 U.S.C. § 522(b)(1), by the laws of the State of a debtor's residence. Prior to June 1, 2001, refunds were claimed as exempt under Florida Statute § 222.11, on the theory that the claim for tax refunds were in fact wages, which are exempt under this section as earned but not received by head of the household from claims of creditors....

...Michaels, 840 F.2d 901 (11th Cir.1988); In re Moody, 241 B.R. 238 (Bankr.M.D.Fla.1999); In re Lancaster, 161 B.R. 308 (Bankr.S.D.Fla.1993); In re Truax, 104 B.R. 471 (Bankr.M.D.Fla.1989). The claim under consideration is not claimed under Florida Statute § 222.11 but under Florida Statute § 222.25....

...omplish was to exempt plain vanilla income tax refund claims due to debtors who have nothing to do whatsoever with any earned income tax credit. This is so because there is no statutory cap placed on wages of head of household under Florida Statutes § 222.11, and clearly earned income credit cannot exceed $31,152....

an exception to the exemption contained in section 222.11. However, appellant points out that said amendment

not exempt from garnishment proceedings under Section 222.11, Florida Statutes (1979). This appeal is dismissed

paid “for personal services or labor.” Fla. Stat. § 222.11(l)(a). In this case, the Debtor claimed as exempt

the head of a family residing in this state. See § 222.11, Fla.Stat. (1983). He filed, together with such

1993 act placed certain limitations on the Fla.Stat. 222.11 wage exemption by limiting the previously

act placed certain limitations on the Fla.Stat. § 222.11 wage exemption by limiting the previously unlimited

therefore was exempt from garnishment pursuant to section 222.11, Florida Statutes. A hearing was conducted

...The court reasoned that allowing a creditor to execute on workers' compensation benefits immediately after they are received would thwart the remedial purpose of the statute. As support for its conclusion, the Broward court noted that the legislature had twice amended § 222.11, Florida Statutes, to provide that wages for a head of family are exempt even after being placed in a bank account and even though they may have been commingled with other funds, as long as the wages can be traced and properly identified. The court opined that its construction of Section 440.22 was consistent with the legislature's treatment of Section 222.11. It reasoned that the legislature had neglected to amend Section 440.22 in a similar manner as Section 222.11 only because no court had ever placed a limiting construction upon the former....

...allocable to lost wages. The Trustee's only support for his position is that the Supreme Court of Florida determined in Broward "that workers' compensation lump sum settlement [sic] were exempt from the claims of creditors as it was consistent with § 222.11 of the Florida Statutes, which exempts wages." The Court finds this argument nonsensical. *880 Apparently, the Trustee is proposing that since the Broward court compared the legislative intent behind Section 222.11 with that behind Section 440.22, the court intended to limit the scope of Section 440.22 to lost wages....

funds are exempt as wages pursuant to Fla.Stat. § 222.11. The matter under consideration is a Motion for

remarried and was now the head of a family. See Section 222.11, Florida Statutes (1975). The court held that

and thus, exempt pursuant to Florida Statutes § 222.11. On June 19, 1998, Trustee’s Objection to Claim

of a family, exempt from garnishment under Section 222.11, Florida Statutes (1979). The former wife filed

of a family residing in Florida. See Fla.Stat. § 222.11, F.S.A. The trial judge entered an order providing

...Within the same section, the Code also states that a Debtor's post-petition "earnings from services performed" are not property of the estate. Id. Moreover, Florida law specifically protects an individual's wages from garnishment or attachment. See Fla. Stat. § 222.11(2)(b) (2011). [5] Fla. Stat. § 222.11(1)(a) defines "earnings" that are protected from garnishment or attachment as "compensation ......

...for personal services or labor whether denominated as wages, salary, commission, or bonus." Thus, the issue before the Court can be framed as whether the monies paid to Mr. Cook by D & G should be construed as exempt wages under § 541(a)(6) of the Code and Fla. *208 Stat. § 222.11 or whether they should be deemed as distributions from D & G, and therefore property of the estate under § 541(a)(6)....

...Thus, the monies that have been classified as Mr. Cook's "5% bonus" are actually "proceeds" or "profits" from the Debtors' property of the estate and are, therefore, property of the estate under § 541(a)(6) and should be turned over to the Trustee. *209 The Debtors also contend that Fla. Stat. § 222.11 prevents the Trustee from having any interest in the Mr. Cook's earnings from D & G. As "Head of Family," Mr. Cook's earnings (as defined by § 222.11(1)(a)) are properly exempt earnings only so far as that term is defined within the statute. As discussed above, Mr. Cook's $120,000 annual salary is properly exempt wages under § 222.11, but the "5% bonus" does not fall within the definition of "earnings" as it is defined in § 222.11(1)(a). Fla. Stat. § 222.11(1)(a) (2011). Florida Statute § 222.11 protects compensation for "personal services" and "by inserting the word `personal' into the key phrase, the [Florida] legislature excluded from this protection income that is derived from passive sources." In re Montoya, 77 B.R....

...Gainer, when 900 more shares were issued to Mr. Gainer. Thus, the Debtors now own 33 shares out of 1,000 shares of D & G, i.e. 3.3%. [4] See Centennial Bank Ex. 3 (Doc. 78). [5] There is no dispute as to whether Mr. Cook is the "head of family" as defined in Fla. Stat. § 222.11(1)(c) and that his wages are thus protected § 222.11(2)(b)....

account as exempt on Schedule C pursuant to section 222.11 of the Florida Statutes. Ex. 12 at 9. The fact

final judgment against Raymond and Dillon. Section 222.11, Florida Statutes This section exempts the

garnishment the wages of a head of a household. § 222.11, Fla.Stat. (1991). As required by section 222

PER CURIAM. Affirmed. See § 222.11(l)(c), Florida Statutes (2002); Mazzella v. Boinis, 617 So.2d 1156

*528determination as to whether or not the provisions of § 222.11, Fla.Stats., F.S.A., are applicable to a corporation