SECOND DIVISION
                               MILLER, P. J.,

                       NOTICE: Motions for reconsideration must be
                       physically received in our clerk’s office within ten
                       days of the date of decision to be deemed timely filed.

                                                                         March 5, 2021

  In the Court of Appeals of Georgia

          PHIPPS, Senior Appellate Judge.

          Truist Bank appeals from a final judgment of the trial court in which it found

  that approximately $104,000 in an account held by Gordon Stark was subject to the

  twenty-five percent disposable earnings limitation on garnishment under former

  OCGA § 18-4-5 (a) (1).1 For the reasons that follow, we reverse.

          Appellate courts review factual determinations in a garnishment proceeding

  under the “any evidence” standard and we are bound by the trial court’s findings as

  long as there is any evidence to support them. A. M. Buckler & Assoc., Inc. v.

         The current version of OCGA § 18-4-5 took effect in January 2021. Throughout
this opinion, all citations to OCGA § 18-4-5 will refer to the prior version in effect in 2019,
at the time this garnishment action was initiated.
  Sanders, 305 Ga. App. 704, 707-708 (1) (700 SE2d 701) (2010). But “[w]hen the

  evidence is uncontroverted and no question of witness credibility is presented . . . the

  trial court’s application of the law to undisputed facts is subject to de novo appellate

  review.” Stoker v. Severin, 292 Ga. App. 870, 871 (665 SE2d 913) (2008).

          So viewed, the record shows that Truist obtained a judgment against Stark in

  the amount of $768,663.47. In December 2019, Truist filed a garnishment action

  naming Wells Fargo Bank, a financial institution, as the garnishee and seeking funds

  in Stark’s account. Wells Fargo filed an answer to the garnishment, stating that it held

  $129,968.74 of Stark’s money, which it then paid into the trial court’s registry. Stark

  filed a claim asserting that $104,318.62 of the funds in his account were “exempt

  from garnishment by virtue of being retirement benefits” pursuant to the provisions

  of OCGA § 18-4-5.2 The parties do not dispute that the remaining $25,650.12 in the

  account is subject to garnishment.

          The trial court held a trial on Stark’s claim. Stark introduced evidence that he

  received the $104,318.62 at issue from the ManpowerGroup Nonqualified Savings

  Plan as a lump sum on July 2, 2019, following his separation from employment with

        The written pleadings in the record state that the disputed amount is $104,318.62,
while at trial, the amount was repeatedly referred to as $104,318.52.

ManpowerGroup. Stark also introduced a copy of the savings plan summary, which

stated that it “is intended to be an unfunded plan that provides deferred compensation

benefits for a select group of management or highly compensated employees of

ManpowerGroup.” The parties argued over whether the funds were subject to the

disposable earnings limitation in OCGA § 18-4-5 (a) (1).

      At the conclusion of the trial, the court issued an order finding that the

disposable earnings limitation applied to the lump sum payment of $104,318.62.

Accordingly, the trial court ruled that Truist was entitled to garnish no more than

$51,729.77, which constitutes the sum of the $25,650.12 that Truist and Stark agreed

was not subject to any garnishment exemption or limitation, plus twenty-five percent

of the $104,318.62. The trial court ordered disbursement of the remaining funds in

the registry to Stark.

      Truist filed an application for a discretionary appeal, which this Court granted.

Thereafter, Truist filed a timely notice of appeal.

      1. Truist argues that the trial court erred in ruling that the disposable earnings

limitation applies to funds from an unfunded plan as described in OCGA § 18-4-6 (a)

(3). We agree.

      To resolve this issue, we must analyze the interplay between OCGA §§ 18-4-5

(a) (1), 18-4-6 (a) (2), and 18-4-6 (a) (3). We note at the outset, however, that the

parties do not dispute that funds from this type of account are subject to the

provisions of OCGA § 18-4-6 (a) (3).

      Under Georgia’s garnishment statutory scheme,”[a]ll money or other property

of the defendant in the possession or control of the garnishee . . . shall be subject to

the process of garnishment[.]” OCGA § 18-4-4 (b). But some property is exempt from

garnishment. Pertinent to this appeal, OCGA § 18-4-6 (a) states:

      (1) Certain earnings or property of the defendant may be exempt from
      the process of garnishment.

      (2) Funds or benefits from an individual retirement account or from a
      pension or retirement program shall be exempt from the process of
      garnishment until paid or otherwise distributed to a member of such
      program or beneficiary thereof. Such funds or benefits, when paid or
      otherwise distributed to such member or beneficiary, shall be exempt
      from the process of garnishment only to the extent of the limitations
      provided in Code Section 18-4-5 for other disposable earnings, unless
      a greater exemption is otherwise provided by law.

      (3) Funds in an unfunded plan maintained by an employer primarily for
      the purpose of providing deferred compensation for a select group of

      management or highly compensated employees shall not be exempt from
      the process of garnishment.

      With respect to property that is subject to garnishment, OCGA § 18-4-5 (a) sets

out a disposable earnings limitation, stating:

      (1) Subject to the limitations set forth in Code Section[] 18-4-6 . . . the
      maximum part of disposable earnings for any work week which is
      subject to garnishment shall not exceed the lesser of:

      (A) Twenty-five percent of the defendant’s disposable earnings for that week;


      (B) The amount by which the defendant’s disposable earnings for that week

exceed $217.50.

(2) In case of earnings for a period other than a week, the proportionate fraction or

multiple of 30 hours per week at $7.25 per hour shall be used.

      Truist argues that because the funds described OCGA § 18-4-6 (a) (2) are

explicitly limited by the disposable earnings limitation in OCGA § 18-4-5, and no

reference is made to OCGA § 18-4-5 in OCGA § 18-4-6 (a) (3), then unfunded plans

are therefore not limited by OCGA § 18-4-5 in any manner. We agree with this


      “The fundamental rules of statutory construction that require us to construe the

statute according to its terms, to give words their plain and ordinary meaning, and to

avoid a construction that makes some language mere surplusage. At the same time,

we must seek to effectuate the intent of the legislature.” Stone v. Stone, 297 Ga. 451,

452 n. 3 (774 SE2d 681) (2015) (citation and punctuation omitted). OCGA § 18-4-6

(a) (2) explicitly provides that funds from an individual retirement account or from

a pension or retirement program, after distribution to the beneficiary, are exempt to

the extent of the limitations provided in OCGA § 18-4-5. In contrast, OCGA § 18-4-6

(a) (3), in describing funds in an unfunded plan, does not refer to OCGA § 18-4-5 or

indicate that funds paid from an unfunded plan are exempt at all.

      “Under the statutory interpretation doctrine of expressio unius est exclusio

alterius, where [the General Assembly] includes particular language in one section

of a statute but omits it in another section of the same Act, it is generally presumed

that [the General Assembly] acts intentionally and purposely in the disparate

inclusion or exclusion.” Grange Indem. Ins. Co. v. Burns, 337 Ga. App. 532, 537-538

(1) (a) (788 SE2d 138) (2016) (citation and punctuation omitted). As a result, we

construe OCGA § 18-4-5 to only apply in this context to OCGA § 18-4-6 (a) (2). See

Padgett v. City of Moultrie, 229 Ga. App. 500, 503 (1) (494 SE2d 299) (1997) (“[I]f

some things . . . are expressly mentioned, the inference is stronger that those omitted

are intended to be excluded than if none at all had been mentioned. The omission of

any such reference from the Code subsection must be regarded as deliberate.”)

(citations and punctuation omitted). If the General Assembly had desired to subject

funds from an unfunded plan to the earnings limitation, it could have done so as it did

with the type of funds mentioned in subsection OCGA § 18-4-6 (a) (2). See Dept. of

Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (1) (456 SE2d 642) (1995)

(where General Assembly expressly mentioned ‘state officer or employee’ in two

subsections of statute, it was presumed to have intentionally omitted it from a third


      Moreover, we are not authorized to read the disposable earnings limitation into

OCGA § 18-4-6 (a) (3), because doing so would render the disposable earnings

limitation expressly mentioned in OCGA § 18-4-6 (a) (3) mere surplusage. See State

of Ga. v. Free At Last Bail Bonds, 285 Ga. App. 734, 737 (647 SE2d 402) (2007)

(Courts must interpret statutes “as a whole, striving . . . to avoid constructions that

make some language mere surplusage.”) (citations and punctuation omitted).

Additionally, such a reading would be “tantamount to adding language to the statute,

which we cannot do. If the General Assembly desired to include [a reference to

OCGA § 18-4-5 in OCGA § 18-4-6 (a) (3)], it would have done so.” Hillman v. Bord,

347 Ga. App. 651, 655 (1) (820 SE2d 482) (2018) (physical precedent only). See also

Catoosa County v. Rome News Media, LLC, 349 Ga. App. 123, 134 n. 52 (825 SE2d

507) (2019) (Courts do not have the authority to rewrite a statute.). Accordingly, the

trial court erred in holding that the disposable earnings limitation applies to the

disputed funds in this case.

      2. Based on our holding in Division 1, we need not reach Truist’s remaining

enumeration of error.

      Judgment reversed. Miller, P. J., and Mercier, J., concur.


Add comment


Recent Posts

Recent Comments