 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
E.W. v. HALL5/31/1996
The opinion of the court was delivered by
The single issue in this case is whether the district court erred in allowing the plaintiff, a judgment creditor, to attach/garnish a savings account and certificate of deposit owned by defendant. Defendant contends that the bulk of the funds are social security benefits awarded retroactively and are exempt under federal law.
The facts may be summarized as follows. In December 1991, J.R.W. resided with her mother, siblings, and defendant, Jimmy Dean Hall. Defendant severely injured the child by tearing her vagina with his finger. Defendant was charged with, and pled nolo contendere to, the crime of rape. He has been an inmate in the Kansas prison system at all pertinent subsequent times, serving a 15-year to life sentence.
On December 15, 1993, the present action was filed seeking damages for the child's injuries. Simultaneously, a petition was filed seeking prejudgment attachment of funds belonging to defendant which were being held in a bank. Pursuant to K.S.A. 60-706, the
order of attachment was issued, directing the bank to reply as garnishee. The bank replied that it held the following funds belonging to defendant:
Certificate of deposit $19,772.16 Savings account 4,364.35 __________ Total $24,136.51
Defendant filed an affidavit asserting " hat all monies except for institutional pay of nine dollars per month are monies received as social security benefits" retroactively awarded. The district court held the funds were not exempt. Subsequently, the plaintiff was awarded a judgment against defendant in the amount of $23,156.54. Defendant was given credit for $2,156.54 restitution previously paid, which left a judgment of $21,000 plus costs and judgment interest. There is no issue before us challenging the personal injury judgment or the attachment garnishment procedure itself. The issue is whether the monies defendant received from social security are exempt.
Resolution of the issue depends upon interpretation of 42 U.S.C. § 407 and 659 (1994). Interpretation of a statute is a question of law over which this court has unlimited review. See Mariche v. Mariche, 243 Kan. 547, 552, 758 P.2d 745 (1988); Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Defendant argues that the district court erred in deciding that an implied exception to the statutory exemption allows attachment of these social security funds. Plaintiff contends that public policy compels an interpretation of the federal statutes to allow this attachment.
A concise summary and history of the relevant federal statutes can be found in Mariche, 243 Kan. 547. There, we considered whether the district court erred in finding that the defendant's social security disability benefits were not exempt from garnishment to pay past-due child support under K.S.A. 60-2308 (a). We first noted that the issue was governed by the federal statutes pertaining to social security benefits, specifically 42 U.S.C. § 407 and § 659. In reaching the conclusion that Mariche's benefits were not
exempt, we set out the following history of the federal statutes, still applicable today:
"Prior to 1975, 42 U.S.C. § 407 (1970) provided that social security payments of all types were not transferable or assignable or subject to execution, levy, attachment, garnishment, or other legal process:
`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
Page 1 2 3 4 5 Kansas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|