BLACH v. DIAZ-VERSON
Filing
400
ORDER granting 366 Motion for Disbursement of Funds; granting 370 Motion for Disbursement of Funds; denying 373 Motion for Disbursement of Funds; denying 376 Motion to Amend/Correct; granting 379 Motion for Disbursement of Funds; denying 385 Motion for Disbursement of Funds; granting 389 Motion for Disbursement of Funds; denying 391 Motion for Disbursement of Funds Ordered by US DISTRICT JUDGE CLAY D LAND on 11/02/2018 (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
HAROLD BLACH,
*
Plaintiff,
*
vs.
*
SAL DIAZ-VERSION,
*
Defendant.
CASE NO. 4:15-MC-5 (CDL)
*
O R D E R
Plaintiff Harold Blach holds a judgment against Defendant
Sal Diaz-Verson.
Diaz-Verson’s
Diaz-Verson has not satisfied the judgment.
former
employer,
AFLAC
Inc.,
makes
bimonthly
payments to Diaz-Verson, twenty-five percent of which is subject
to garnishment.
filing
monthly
AFLAC.
So, for the last three years, Blach has been
applications
for
writs
of
garnishment
against
Before Blach could start collecting on his judgment via
garnishment, Diaz-Verson’s former attorney, Robert Frey, laid
claim to the garnished funds, asserting that he had a superior
judgment
against
his
former
client.
The
Court
agreed
and
ordered disbursement of the garnished funds to Frey until his
judgment was satisfied.
After Frey’s judgment was satisfied and
Blach began receiving disbursements of the garnished funds, Frey
reentered the fray, this time representing Diaz-Verson’s ex-wife
Patricia.
Patricia argues that she has a judgment against Diaz-
Verson that is superior to Blach’s, and she filed third party
claims to the garnished funds.
The Court must now decide who
should receive the funds held in the Court’s registry that are
subject to the pending motions for disbursement of funds.
PROCEDURAL BACKGROUND
In
response
to
Blach’s
applications
for
writs
of
garnishment, the Clerk issued writs of garnishment (ECF No. 344
on 5/11/2018, ECF No. 356 on 6/6/2018, ECF No. 361 on 7/5/2018,
ECF
No.
368
garnishment
(Answer,
on
and
ECF No.
8/3/2018).
deposited
Answer,
$10,619.64
on
of
funds
answered
into
the
ECF
7/19/2018;
$10,619.64
on
No.
364
Answer,
7/10/2018,
ECF
No.
369
Answer,
not object to AFLAC’s Answers.
$48,103.56
ECF
deposit
on
of
registry
$16,244.64
on
8/15/2018;
writs
Court’s
9/6/2018, deposit of $10,619.64 on 9/14/2018).1
its registry,
those
359 on 6/21/2018, deposit of
6/29/2018;
deposit
AFLAC
on
of
8/8/2018,
No.
382
on
Diaz-Verson did
The Court holds $64,348.20 in
of which is subject to the pending
motions for disbursement.
DISCUSSION
Both Blach and Patricia hold judgments against Diaz-Verson.
The question for the Court is whose judgment has priority in
this garnishment action.
“It is clear that in Georgia, the
1
Another writ of garnishment was issued on August 29, 2018 (ECF No.
380).
AFLAC answered on 10/11/2018 (ECF No. 393) and deposited
$16,244.64 into the Court’s registry on 10/25/2018.
There is no
pending motion to disburse those funds.
2
relative position of judgment liens is determined by seniority;
an older Georgia judgment has priority over a newer judgment.”
NationsBank, N.A. v. Gibbons, 487 S.E.2d 417, 418–19 (Ga. Ct.
App. 1997); accord O.C.G.A. § 9-12-80 (“All judgments obtained
in the superior courts, magistrate courts, or other courts of
this state shall be of equal dignity and shall bind all the
property of the defendant in judgment, both real and personal,
from the date of such judgments[.]”).
Blach
obtained
a
judgment
for
$158,343.40
against
Diaz-
Verson on March 12, 2012 in the U.S. District Court for the
Northern District of Alabama.
Georgia on October 6, 2015.
He registered the judgment in
“Although a foreign judgment is
entitled to full faith and credit, to be enforced in Georgia it
must first be domesticated.”
Gibbons, 487 S.E.2d at 419.
A
foreign judgment cannot be enforced in Georgia and thus “cannot
acquire position relative to other liens” until it domesticated.
Id.
Therefore, the priority date of Blach’s judgment as it
relates to other Georgia judgments is October 6, 2015.
Patricia and Diaz-Verson divorced in 2011.
Pursuant to the
final judgment and decree entered on December 2, 2011, DiazVerson must pay Patricia alimony of $10,000 per month—$5,000 on
the first day of each month and $5,000 on the fifteenth day of
each
month—until
Patricia
dies
or
remarries.
Am.
Mot.
for
Distribution Ex. A, Final J. & Decree 1, ECF No. 376-1 at 1 &
3
Settlement Agreement ¶ 3, ECF No. 376-1 at 4-5.
living and has not remarried.
Patricia is
She claims that Diaz-Verson was
in arrears on her alimony payments in the amount of $96,000 as
of August 14, 2018.
Patricia Diaz-Verson Aff. (Aug. 14, 2018),
ECF No. 375.
She also appears to assert that Diaz-Verson did
not
alimony
make
any
Patricia
Diaz-Verson
payments
Aff.
after
(Sept.
August
20,
14,
2018),
2018.
ECF
See
No.
386
(claiming an arrearage of $111,000 as of September 20, 2018).
Patricia did not state when Diaz-Verson stopped making alimony
payments, but based on her affidavits, Diaz-Verson was nineteen
full payments and one partial payment behind as of August 14,
2018.
Thus, Diaz-Verson was current on his alimony payments
through October 2017.
Under the
final judgment and
decree,
Patricia could not institute continuing garnishment proceedings
against
Diaz-Verson
until
mid-November
2017,
when
the
unpaid
amount was “equal to or greater than the amount payable for one
month.”
Final J. & Decree 2, ECF No. 376-1 at 2.
Patricia argues that her claim to the garnished funds based
on the arrearages is superior to Blach’s judgment because her
claim relates back to the original date of her divorce decree,
December
2,
Patricia’s
2011.
claim
Blach,
can
take
on
the
priority
other
only
hand,
as
to
contends
that
Diaz-Verson’s
arrearage on the date of Blach’s judgment, which Blach asserts
4
was zero.
Both sides rely on the same case to answer this
question: Cale v. Hale, 277 S.E.2d 770 (Ga. Ct. App. 1981).
In Cale, a couple was granted a final divorce in 1975, and
the wife was granted monthly alimony and child support.
In
March 1980, a creditor obtained a judgment against the husband.
Later
that
month,
the
wife
obtained
a
writ
of
fieri
facias
against the husband because he was in arrears on his monthly
alimony and child support payments.
garnished,
judgment
and
was
the
trial
entitled
to
court
The husband’s property was
found
priority
in
that
the
the
creditor’s
distribution
of
garnishment funds over the wife’s claim for unpaid alimony and
child support.
The Georgia Court of Appeals reversed.
The
Court of Appeals noted that certain divorce judgments are an
exception
to
the
rule
of
priority
under
O.C.G.A. §
9-12-80
because “a judgment for permanent alimony does not create a lien
for
future
monthly
installments
unless
a
lien
is
expressly
created against the property in the alimony judgment.”
277 S.E.2d at 772.
Cale,
But, the Court of Appeals remanded for
further proceedings in Cale because the wife had priority “in
that
portion
of
the
garnishment
fund
which
represents
[the
husband’s] arrearage on the date of [the creditor’s] judgment.”
Id.; accord Dee v. Sweet, 480 S.E.2d 316, 318 (Ga. Ct. App.
1997) (finding that the trial court did not err in concluding
that a judgment creditor had priority over a claim for unpaid
5
child
support
that
had
not
accrued
prior
to
the
judgment
creditor’s lien).
Under this precedent, Patricia only had priority “in that
portion of the garnishment fund which represents [Diaz-Verson’s]
arrearage on the date of [Blach’s] judgment.”
at 772.
funds,
Cale, 277 S.E.2d
Thus, to be entitled to a disbursement of the garnished
Patricia
was
required
to
establish
that
she
had
judgment lien against Diaz-Verson before October 6, 2015.
did not do so.
a
She
Patricia did not present any evidence that there
was an arrearage in alimony payments as of that date.
Based on
Patricia’s affidavits, Diaz-Verson was current on his alimony
payments through October 2017 because Patricia only claims that
he was nineteen full payments and one partial payment behind as
of
August
14,
2018.
Accordingly,
Patricia
does
not
have
priority over Blach in any portion of the present garnishment
fund.
Her motions for disbursement are denied, and Blach’s are
granted.
CONCLUSION
For the reasons set forth above, the Court denies Patricia
Diaz-Verson’s motions for disbursement (ECF Nos. 373, 376, 385,
391).
Nos.
The Court grants Blach’s motions for disbursement (ECF
366,
370,
379,
389).
The
Clerk
is
instructed
to
enter
judgment in favor of Plaintiff Harold Blach with regard to the
writs of garnishment issued on May 11, 2018 (ECF No. 344), June
6
6, 2018 (ECF No. 356), July 5, 2018 (ECF No. 361), and August 3,
2018 (ECF No. 368).
Fourteen days from the date of today’s
Order, the Clerk shall disburse to Blach $48,103.56, plus any
interest earned on that sum while it was held in the Court’s
registry, unless any party files a notice of appeal relating to
today’s rulings before that date.
IT IS SO ORDERED, this 2nd day of November, 2018.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
7
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