Opinion
No. 3-96-CR-300-P(X)
October 3, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Mark W. Kemp has filed objections to a writ of continuing garnishment obtained by the United States of America. For the reasons stated herein, the objections should be sustained in part and overruled in part.
I.
On March 27, 1997, defendant was convicted of bank theft and sentenced to 18 months confinement. The trial court also imposed a $2,000 fine and ordered defendant to make restitution in the amount of $17,650. As of January 30, 2002, defendant has paid $3,950 toward his fine and restitution, leaving a balance of $15,700. In an effort to collect this sum, the government sought and obtained a writ of continuing garnishment against defendant's employer, Hanson, Inc., pursuant to 28 U.S.C. § 3201 and 3205. The writ requires Hanson to withhold 25% of defendant's disposable earnings from each pay period to be applied to his fine and restitution obligation.
Defendant and his employer were served with the writ of continuing garnishment and notified of the procedures for claiming exemptions. On June 3, 2002, defendant filed objections based on the following exemptions: (1) undelivered mail; (2) worker's compensation benefits; and (3) court-ordered child support. See 18 U.S.C. § 3613 (a)(1). He also requested a hearing to determine the validity of these exemptions. Hanson filed an answer to the writ of garnishment on September 5, 2002, stating that defendant had not worked since April 13, 2002 and was receiving $420.61 per week in worker's compensation benefits.
A show cause hearing was held on October 3, 2002 before U.S. Magistrate Judge Jeff Kaplan. See SHOW CAUSE ORDER, 9/13/02. Assistant United States Attorney Mattie Peterson Compton appeared on behalf of the government. Defendant appeared pro se. Hanson, Inc. appeared by and through its counsel of record, Ryan Browne. After considering the evidence and argument presented by the parties, the magistrate judge makes the following findings and recommendation in this case.
II.
The United States may enforce a judgment imposing a criminal fine or restitution order "in accordance with the practices and procedures for the enforcement of a civil judgment under Federal law or State law." 18 U.S.C. § 3613 (a) (1). One such procedure is a writ of garnishment under the Federal Debt Collection Practices Act ("FDCPA"), 28 U.S.C. § 3205. This statute provides, in pertinent part:
A court may issue a writ of garnishment against property (including nonexempt disposable earnings) in which the debtor has a substantial nonexempt interest and which is in the possession, custody or control of a person other than the debtor, in order to satisfy the judgment against the debtor . . .Id. § 3205(a). However, certain property is exempt from garnishment. This includes "property exempt from levy for taxes pursuant to section 6334(a)(1), (2), (3), (4), (5), (6), (7), (8), (10) and (12) of the Internal Revenue Code of 1986." 18 U.S.C. § 3613 (a)(1). Section 6334(a) of the Internal Revenue Code provides, in part:
There shall be exempt from levy:
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(5) Undelivered mail. Mail, addressed to any person, which has not been delivered to the addressee.
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(7) Workman's compensation. Any amount payable to an individual as workmen's compensation (including any portion thereof payable with respect to dependents) under a workmen's compensation law of the United States, any State, the District of Columbia, or the Commonwealth of Puerto Rico.
(8) Judgments for support of minor children. If the taxpayer is required by judgment of a court of competent jurisdiction, entered prior to the date of levy, to contribute to the support of his minor children, so much of the salary, wages, or other income as necessary to comply with such judgment.26 U.S.C. § 6334 (a)(5), (7) (8). The party filing an objection has the burden of proving the grounds for any exemption. 28 U.S.C. § 3205 (c)(5). See also United States v. Sawaf, 74 F.3d 119, 121 (6th Cir. 1996).
III.
The record shows that defendant's employer, Hanson, Inc., was served with the writ of continuing garnishment on April 30, 2002. (Garnishee's Verif. Ans. at 1, ¶ 2). On that date, defendant was no longer working due to a job-related injury and was receiving $420.61 in weekly worker's compensation benefits. ( Id. at 1-2, ¶¶ 3, 7). Those benefits are exempt from garnishment. See 18 U.S.C. § 3613 (a) 26 U.S.C. § 6334 (a)(7).
However, defendant returned to work on September 24, 2002 and is currently earning wages that can be garnished to satisfy his criminal fine and restitution obligation. Defendant relies on two other exemptions in an attempt to defeat the government's right to garnish his wages: (1) undelivered mail; and (2) court-ordered child support. See 18 U.S.C. § 3613 (a) 26 U.S.C. § 6334 (a)(5) (8). The first objection is not applicable as the government does not seek to garnish any mail which has not been delivered to defendant. His second objection also is without merit. Although defendant financially supports his five children, there is no court order requiring him to do so. Such an order is necessary to establish the child support exemption. See United States v. Taylor, 2001 WL 1172185 at *2 (N.D. Tex. Sept. 27, 2001) (Solis, J.). Accordingly, these objections should be overruled.
RECOMMENDATION
Defendant's objections to the writ of continuing garnishment should be sustained in part and overruled in part. The objections should be sustained as to any worker's compensation benefits received by defendant from April 30, 2002, the date the writ was served on his employer, through September 24, 2002, when defendant returned to work. In all other respects, the objections should be overruled.
Hanson, Inc. should be required to comply with the writ of continuing garnishment issued on February 20, :2002 and withhold 25% of defendant's disposable earnings from each pay period to be applied to the balance of his criminal fine and restitution obligation.