SB 364--
=================================================================================
Session of 1997
SENATE BILL No. 364
By Committee on Ways and Means
2-17
----------------------------------------------------------------------------
AN ACT concerning civil procedure and civil actions; relating to garnish-
ment; amending K.S.A. 60-717 and 61-2005 and K.S.A. 1996 Supp.
60-2310 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 60-717 is hereby amended to read as follows: 60-
717. (a) Form. (1) An order of garnishment, issued independently of an
attachment, either prior to judgment or as an aid for the enforcement of
a judgment, for the purpose of attaching any property, funds, credits or
indebtedness belonging to or owing the defendant, other than earnings,
is declared to be sufficient if substantially in the following form:
``In the District Court of ____________ County, Kansas, A.B., Plaintiff, vs. C.D., De-
fendant, and E.F., Garnishee. The State of Kansas to the Garnishee: You are hereby ordered
as a garnishee to file with the clerk of the above named court, within 10 days after service
of this order upon you, your answer under oath stating whether you are at the time of the
service of this order upon you, and also whether at any time thereafter but before you sign
your answer, indebted to the defendant, or have in your possession or control any property
belonging to the defendant, excluding earnings (compensation for personal services, whether
denominated as wages, salary, commission, bonus or otherwise) due and owing the defen-
dant and stating the amount of any such indebtedness and description of any such property.
For the purpose of this order, if you are, at the time this order is served upon you, an
executor or administrator of an estate containing property or funds to which defendant is
or may become entitled as a legatee or distributee of the estate upon its distribution, you
are deemed to be indebted to the defendant to the extent of such property or funds. You
are further ordered to withhold the payment of any such indebtedness, or the delivery away
from yourself of any such property, until the further order of the court. Your answer on the
form served herewith shall constitute substantial compliance with this order.
``Failure to file your answer may entitle the plaintiff to judgment against you for the full
amount of the claim and costs.
``Witness my hand and seal of the court at ____________ in this county, this _________________________________
day of ____________, 19___, _______________________________________________________________________________, Clerk of
the court, ____________ County.''
(2) An order of garnishment, issued independently of an attachment
as an aid for the enforcement of a judgment and for the purpose of
attaching earnings of the defendant shall include the defendant's address
and social security number, if known, the address of the plaintiff's attor-
SB 364
2
1 ney and, except as otherwise provided the amount of the plaintiff's claim
2 against the defendant. If the exact amount of the plaintiff's claim is not
3 known, the order of garnishment shall include an approximate amount of
4 the plaintiff's claim against the defendant. It is declared to be sufficient
5 if substantially in the following form:
6 ``In the District Court of ____________ County, Kansas, A.B., Plaintiff, vs. C.D., De-
7 fendant, and E.F., Garnishee. The State of Kansas to the Garnishee: You are hereby ordered
8 as a garnishee to file with the clerk of the above named court, within 40 days after service
9 of this order upon you, your answer under oath stating whether you are indebted to the
10 defendant by reason of earnings (compensation for personal services, whether denominated
11 as wages, salary, commission, bonus or otherwise) due and owing the defendant and stating
12 the amount of any such indebtedness. Computation of the amount of your indebtedness
13 shall be made as prescribed by the answer form served herewith and shall be based upon
14 defendant's earnings for any pay period or periods which end during the 30-day period
15 beginning the day this order is served upon you. You are further ordered to withhold from
16 each payment for earnings due the defendant for any pay period or periods ending during
17 such 30-day period the payment of that portion of defendant's earnings required to be
18 withheld pursuant to the directions accompanying the answer form until the further order
19 of the court. If you do not receive an order of the court to dispose of earnings withheld
20 from the defendant within 60 days from the date your answer is filed, and your answer is
21 not contested by the plaintiff, you may petition the court for an order allowing you to return
22 withheld funds to the defendant. Your answer on the form shall constitute substantial com-
23 pliance with this order.
24 Defendant __________________________________________________________________ Plaintiff's attorney
__________________________________________________________________
25 Address _________________________________________________________________________________ Address
_________________________________________________________________________________
26 ___________________________________________________________________________________________________
___________________________________________________________________________________________________
27 Social Security #, if known _____________________
28 Amount of claim
_________
29 ``Failure to file your answer may entitle the plaintiff to judgment against you for the full
30 amount of the claim and costs.
31 ``Witness my hand and seal of the court at ____________ in this county, this _________________________________
32 day of ____________, 19___, ____________, Clerk of the court, ____________ County.''
33 If such order of garnishment is issued at the written direction of the
34 party entitled to enforce the judgment, pursuant to K.S.A. 60-716, and
35 amendments thereto, to enforce (1) an order of any court for the support
36 of any person, (2) an order of any court of bankruptcy under chapter XIII
37 of the federal bankruptcy act or (3) a debt due for any state or federal
38 tax, the clerk of the district court shall cause such purpose to be clearly
39 stated on the order of garnishment and the accompanying garnishee's
40 answer form immediately below the caption. If the garnishment is to
41 enforce a court order for the support of any person, the garnishment shall
42 not exceed 50% of an individual's disposable earnings unless the person
43 seeking the garnishment specifies to the garnishee a greater percent to
44 be withheld, as authorized by subsection (g) (f) of K.S.A. 60-2310 and
SB 364
3
1 amendments thereto.
2 From earnings due to defendant, the garnishee may withhold and re-
3 tain to defray the garnishee's expenses an administrative fee of $10 for
4 each pay period in which earnings are withheld, not to exceed $20 for
5 each month in which earnings are withheld. If addition of this fee causes
6 the total amount withheld to exceed the restrictions imposed by subsec-
7 tion (b) K.S.A. 60-2310, and amendments thereto, the fee shall be de-
8 ducted from the amount withheld.
9 (b) Service and return. The order of garnishment shall be served on
10 the garnishee, together with two copies of the form for the garnishee's
11 answer prescribed in K.S.A. 60-718 and amendments thereto and re-
12 turned by the officer making service in the same manner as an order of
13 attachment. If the order is served prior to a judgment on the plaintiff's
14 claim, the order shall also be served on the defendant, if the defendant
15 can be found, but failure to serve the defendant shall not relieve the
16 garnishee from liability under the order.
17 (c) Effect. An order of garnishment issued to attach any property,
18 funds, credits or other indebtedness belonging to or owing the defendant,
19 other than earnings, shall attach (1) all such property of the defendant
20 which is in the possession or under the control of the garnishee, and all
21 such credits and indebtedness due from the garnishee to the defendant
22 at the time of service of the order and (2) all such property coming into
23 the possession or control of the garnishee and belonging to the defendant,
24 and all such credits and indebtedness becoming due to the defendant
25 between the time of the serving of the order of garnishment and the time
26 of the signing of the answer of the garnishee, but if the garnishee is an
27 executor or administrator of an estate and the defendant is or may become
28 a legatee or distributee thereof, the order of garnishment shall attach and
29 create a first and prior lien upon any property or funds of such estate to
30 which the defendant is entitled upon distribution of the estate and the
31 garnishee shall be prohibited from paying to the defendant any of such
32 property or funds until so ordered by the court from which the order of
33 garnishment was issued.
34 An order of garnishment issued for the purpose of attaching earnings
35 of the defendant shall have the effect of attaching the nonexempt portion
36 of the defendant's earnings for any pay period or periods which end dur-
37 ing the 30-day period beginning the date the order is served. Nonexempt
38 earnings are earnings which are not exempt from wage garnishment pur-
39 suant to K.S.A. 60-2310 and amendments thereto, and computation
40 thereof for any pay period or periods which end during the 30-day period
41 beginning the date the order is served shall be made in accordance with
42 the directions accompanying the garnishee's answer form served with the
43 order of garnishment.
SB 364
4
1 Sec. 2. K.S.A. 1996 Supp. 60-2310 is hereby amended to read as
2 follows: 60-2310. (a) Definitions. As used in this act and the acts of which
3 this act is amendatory, unless the context otherwise requires, the follow-
4 ing words and phrases shall have the meanings respectively ascribed to
5 them:
6 (1) ``Earnings'' means compensation paid or payable for personal
7 services, whether denominated as wages, salary, commission, bonus or
8 otherwise;
9 (2) ``disposable earnings'' means that part of the earnings of any in-
10 dividual remaining after the deduction from such earnings of any amounts
11 required by law to be withheld;
12 (3) ``wage garnishment'' means any legal or equitable procedure
13 through which the earnings of any individual are required to be withheld
14 for payment of any debt; and
15 (4) ``federal minimum hourly wage'' means that wage prescribed by
16 subsection (a)(1) of section 6 of the federal fair labor standards act of
17 1938, and any amendments thereto.
18 (b) Restriction on wage garnishment. Subject to the provisions of sub-
19 section (e) (d), only the aggregate disposable earnings of an individual
20 may be subjected to wage garnishment. The maximum part of such earn-
21 ings of any wage earning individual which may be subjected to wage
22 garnishment for any workweek or multiple thereof may not exceed the
23 lesser of: (1) Twenty-five percent of the individual's aggregate disposable
24 earnings for that workweek or multiple thereof; (2) the amount by which
25 the individual's aggregate disposable earnings for that workweek or mul-
26 tiple thereof exceed an amount equal to 30 times the federal minimum
27 hourly wage, or equivalent multiple thereof for such longer period; or (3)
28 the amount of the plaintiff's claim as found in the order for garnishment.
29 No one creditor may issue more than one garnishment against the earn-
30 ings of the same judgment debtor during any one 30-day period, but the
31 court shall allow the creditor to file amendments or corrections of names
32 or addresses of any party to the order of garnishment at any time. In
33 answering such order the garnishee-employer shall withhold from all
34 earnings of the judgment-debtor for any pay period or periods ending
35 during such 30-day period an amount or amounts as are allowed and
36 required by law. Nothing in this act shall be construed as charging the
37 plaintiff in any garnishment action with the knowledge of the amount of
38 any defendant's earnings prior to the commencement of such garnish-
39 ment action.
40 (c) Sickness preventing work. If any debtor is prevented from work-
41 ing at the debtor's regular trade, profession or calling for any period
42 greater than two weeks because of illness of the debtor or any member
43 of the family of the debtor, and this fact is shown by the affidavit of the
SB 364
5
1 debtor, the provisions of this section shall not be invoked against any such
2 debtor until after the expiration of two months after recovery from such
3 illness.
4 (d) Assignment of account. If any person, firm or corporation sells or
5 assigns an account to any person or collecting agency, that person, firm
6 or corporation or their assignees shall not have or be entitled to the ben-
7 efits of wage garnishment. The provision of this subsection shall not apply
8 to the following:
9 (1) Assignments of support rights to the secretary of social and re-
10 habilitation services pursuant to K.S.A. 39-709 and 39-756, and amend-
11 ments thereto;
12 (2) support rights which have been assigned to any other state pur-
13 suant to title IV-D of the federal social security act (42 U.S.C. (section) 651 et
14 seq.);
15 (3) assignments of accounts receivable or taxes receivable to the di-
16 rector of accounts and reports made under K.S.A. 75-3728b and amend-
17 ments thereto; or
18 (4) collections pursuant to contracts entered into in accordance with
19 K.S.A. 1996 Supp. 75-719 and amendments thereto involving the collec-
20 tion of restitution or debts to district courts.
21 (e) (d) Exceptions to restrictions on wage garnishment. The restric-
22 tions on the amount of disposable earnings subject to wage garnishment
23 as provided in subsection (b) shall not apply in the following instances:
24 (1) Any order of any court for the support of any person, including
25 any order for support in the form of alimony, but the foregoing shall be
26 subject to the restriction provided for in subsection (g) (f);
27 (2) any order of any court of bankruptcy under chapter XIII of the
28 federal bankruptcy act; and
29 (3) any debt due for any state or federal tax.
30 (f) (e) Prohibition on courts. No court of this state may make, execute
31 or enforce any order or process in violation of this section.
32 (g) (f) The maximum part of the aggregate disposable earnings of an
33 individual for any workweek which is subject to garnishment to enforce
34 any order for the support of any person shall not exceed:
35 (1) If the individual is supporting a spouse or dependent child (other
36 than a spouse or child with respect to whose support such order is used),
37 50% of the individual's disposable earnings for that week;
38 (2) if the individual is not supporting a spouse or dependent child
39 described in clause (1), 60% of such individual's disposable earnings for
40 that week; and
41 (3) with respect to the disposable earnings of any individual for any
42 workweek, the 50% specified in clause (1) shall be 55% and the 60%
43 specified in clause (2) shall be 65%, if such earnings are subject to gar-
SB 364
6
1 nishment to enforce a support order for a period which is prior to the
2 twelve-week period which ends with the beginning of such workweek.
3 Sec. 3. K.S.A. 61-2005 is hereby amended to read as follows: 61-
4 2005. (a) Form of garnishment order. An order of garnishment, issued
5 independently of an attachment for the purpose of attaching earnings or
6 for the purpose of attaching other property of the defendant, and the
7 answer of the garnishee are declared to be sufficient if substantially in
8 compliance with the appropriate form prescribed in the appendix to this
9 act. If an order of garnishment is issued at the written direction of the
10 party entitled to enforce the judgment, pursuant to K.S.A. 61-2004 and
11 amendments thereto, for the purpose of enforcing (1) an order of any
12 court for the support of any person, (2) an order of any court of bank-
13 ruptcy under chapter XIII of the federal bankruptcy act or (3) a debt due
14 for any state or federal tax, the clerk of the court shall cause such purpose
15 to be clearly stated on the order of garnishment and the accompanying
16 garnishee's answer form immediately below the caption thereof. If the
17 garnishment is to enforce a court order for the support of any person, the
18 garnishment shall not exceed 50% of an individual's disposable earnings
19 unless the person seeking the garnishment specifies to the garnishee a
20 greater percent to be withheld, as authorized by subsection (g) (f) of
21 K.S.A. 60-2310 and amendments thereto.
22 (b) Service and return. The order of garnishment shall be served on
23 the garnishee, together with two copies of the appropriate form for the
24 garnishee's answer prescribed in the appendix to this act, and returned
25 by the officer making service in the same manner as an order of attach-
26 ment. If the order is served prior to a judgment on the plaintiff's claim,
27 the order shall also be served on the defendant, if the defendant can be
28 found, except that the order shall not be served on the defendant until
29 after service has been made on the garnishee. Failure to serve the defend-
30 [chant shall not relieve the garnishee from liability under the order.
31 (c) Effect. An order of garnishment issued for the purpose of attach-
32 ing any property, funds, credits or other indebtedness belonging to or
33 owing the judgment debtor, other than earnings, shall have the effect of
34 attaching (1) all such personal property of the defendant which is in the
35 possession or under the control of the garnishee, and all such credits and
36 indebtedness due from the garnishee to the defendant at the time of
37 service of the order and (2) all such personal property coming into the
38 possession or control of the garnishee and belonging to the defendant,
39 and all such credits and indebtedness becoming due to the defendant
40 between the time of the serving of the order of garnishment and the time
41 of the signing of the answer of the garnishee, except that where the gar-
42 nishee is an executor or administrator of an estate where the defendant
43 is or may become a legatee or distributee thereof, the order of garnish-
SB 364
7
1 ment shall have the effect of attaching and creating a first and prior lien
2 upon any property or funds of such estate to which the defendant is
3 entitled upon distribution of the estate, and such garnishee shall be pro-
4 hibited from paying over to the defendant any of such property or funds
5 until so ordered by the court from which the order of garnishment was
6 issued.
7 An order of garnishment issued for the purpose of attaching earnings
8 of the defendant shall have the effect of attaching the nonexempt portion
9 of the defendant's earnings for any pay period or periods which end dur-
10 ing the 30-day period beginning the day in which the order is served.
11 Nonexempt earnings are earnings which are not exempt from wage gar-
12 nishment pursuant to K.S.A. 60-2310 and amendments thereto, and com-
13 putation thereof for any pay period or periods shall be made in accordance
14 with the directions accompanying the garnishee's answer form served
15 with the order of garnishment.
16 (d) Administrative fee. From income due the defendant, the gar-
17 nishee may withhold and retain to defray the garnishee's costs an admin-
18 istrative fee of $10 for each pay period for which income is withheld, not
19 to exceed $20 for each month for which income is withheld, whichever
20 is less. Such administrative fee shall be in addition to the amount required
21 to be withheld under the order for garnishment. If the addition of this
22 fee causes the total amount withheld to exceed the restrictions imposed
23 by subsection (b) of K.S.A. 60-2310, and amendments thereto, the fee
24 shall be deducted from the amount withheld.
25 Sec. 4. K.S.A. 60-717 and 61-2005 and K.S.A. 1996 Supp. 60-2310
26 are hereby repealed.
27 Sec. 5. This act shall take effect and be in force from and after its
28 publication in the statute book.