Matavich v. Budak

Donofrio, J. Defendant-appellant, Irene Budak, is appealing the judgment of the Municipal Court of Struthers which overruled her motion to vacate the prior order of such court to garnishee the sum of $215.34 from her checking account in the Dollar Savings and Trust Company, which was based on a prior judgment of $500 that plaintiff-appellee, Alex J. Matavich, had obtained against appellant. On October 7, 1980 appellee filed the affidavit in aid of execution that resulted in the attachment. The sum of $215.34 was paid into the trial court on October 29,1980 and was disbursed to appellee on the same day. On October 31, 1980 appellant filed a motion to vacate the order of the trial court to garnishee appellant’s money in her checking account because such money was social security funds that are exempt from execution, attachment or garnishment by Section 407, Title 42, U.S. Code. After a hearing on the motion, the trial court found that the checking account consisted solely of social security funds that are not subject to execution. However, the trial court held that the exemption granted to appellant on the funds by the federal government and incorporated into R.C. 2329.66 had been waived because the funds derived from the attachment had been disbursed before appellant asserted her objection to such attachment. Appellant’s only assignment of error is that the trial court committed error prejudicial to appellant and contrary to law by holding that appellant had waived the exempt character of the money on deposit in her bank account, despite evidence that all such moneys were derived from supplemental security income checks, exempt from attachment by federal law, and that appellant filed a motion to vacate the order to garnishee only two days after disbursement was made to appellee. Section 407, Title 42, U.S. Code provides as follows: “The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.” R.C. 2329.66 provides, in pertinent part, as follows: “(A) Every person who is domiciled in this state may hold property exempt from execution, garnishment, attachment, or sale to satisfy a judgment or order, as follows: ¿i# sfc “(16) Any other property that is specifically exempted from execution, attachment, garnishment, or sale by federal statutes other than the ‘Bankruptcy Reform Act of 1978,’ 92 Stat. 2549, 11 U.S.C. 101 et seq., as amended.” Article VI of the United States Constitution provides, in pertinent part, as follows: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Where an exemption depends on demand, it may be impliedly waived by the failure to assert the demand at the proper time or in a reasonable manner by the person entitled to exercise the right. Conley v. Chilcote (1874), 25 Ohio St. 320, 324; Pennsylvania Rd. Co. v. Bell (1925), 22 Ohio App. 67; 23 Ohio Jurisprudence 2d 274, Exemptions, Section 45; 31 *230 American Jurisprudence 2d 463, Exemptions, Section 163. R.C. 1901.13 provides, in pertinent part, as follows: “In any action or proceeding of which a municipal --court has jurisdiction, the court or any judge thereof has power: * * “(C) To hear and determine questions of exemptions upon application or action of any party to a pending cause;” Appellee correctly points out that appellant was required to file a written motion pursuant to Civ. R. 7(B) to assert her claim for an exemption to subject attachment. R.C. 1901.21(A) provides that the Rules of Civil Procedure shall be applicable unless otherwise provided by R.C. Chapter 1901. The constitutionality of the Ohio garnishment statutes is not at issue in this case. The issue is the interpretation of Ohio garnishment statutes to the facts of this case. No Ohio case directly on point has been called to the attention of this court so that this case is one of first impression in this court. Appellant was represented by counsel early in the proceedings. The appellant had time prior to the disbursement of funds to file a written motion to vacate and assert the exemption which undoubtedly was due the appellant. The first action taken by appellant’s counsel was after disbursement of funds had been made by the court some twenty-two or twenty-three days after notice to appellant of attachment proceedings. The facts of the instant case dictate that the discretion of the trial judge should be upheld. The trial judge, based on the length of time of inaction, held that the appellant waived the exemption. No action was taken for a period of over three weeks. If, indeed, a waiver can be accomplished by appellant’s inaction, then the trial judge acted legally and within his sound discretion to make such determination. It is not the function of this reviewing court to substitute its judgment for that of the trial court. For these reasons the judgment of the trial court is affirmed. Judgment affirmed. O’Neill, J., concurs. Lynch, P.J., dissents.