Rios v. Mireles

• Decision Date: 22 August 1996
• Docket Number: No. 95CA1249,95CA1249
• Citation: 937 P.2d 840
• Parties: Rosa RIOS, Plaintiff, v. Fernando MIRELES, a/k/a Blas Rios, Defendant-Appellant, and Evelyn L. Garcia, f/k/a Evelyn L. Mireles, Defendant-Appellee. . V
• Court: Colorado Court of Appeals

Page 840

937 P.2d 840

Rosa RIOS, Plaintiff, v. Fernando MIRELES, a/k/a Blas Rios, Defendant-Appellant and Evelyn L. Garcia, f/k/a Evelyn L. Mireles, Defendant-Appellee.

No. 95CA1249.

Colorado Court of Appeals Div. V.

Aug. 22, 1996.

Rehearing Denied Sept. 26, 1996.

Certiorari Denied May 27, 1997.

Stevens, Littman & Biddison, L.L.C., Craig A. Weinberg, Boulder, for Defendant-Appellant.

Kirk Brush, Fort Collins, for Defendant-Appellee.

Opinion by Judge CASEBOLT.

This is a declaratory judgment proceeding involving garnishment of a workers' compensation award to enforce a judgment for child support arrearages due from the injured worker. Defendant Fernando Mireles, a/k/a Blas Rios (Mireles), appeals the trial court's determination of the garnishable portion of the award and the allowance of interest thereon. We modify the judgment and, as modified, affirm.

Mireles was previously married to defendant, Evelyn Garcia and later to plaintiff, Rosa Rios. He had children by both marriages. Both former spouses obtained judgments against Mireles for child support arrearages.

Mireles received a workers' compensation award in the amount of $45,000, incurring attorney fees and costs therefor in the amount of $9,244.44. Garcia learned of the workers' compensation award and garnished it to enforce her judgment for $35,000, as did plaintiff, who had obtained a judgment for $29,388.29. Additionally, plaintiff initiated this declaratory judgment action, in which she requested the court to determine the rights of herself, Garcia, and Mireles to the proceeds of the award.

All parties stipulated that the attorney who assisted Mireles in obtaining the workers' compensation award should receive $9,244.44, and that amount was paid from the $45,000 award. The parties further agreed that Garcia would immediately receive $11,620 from the award, because her share of the award would be at least that amount. The trial court approved these stipulations.

The trial court was requested to determine the amount garnishable under the applicable statutes, to whom the garnished funds should be paid, and whether Mireles was entitled to offset his workers' compensation attorney fees and costs before the garnishable amount was calculated. The trial court determined that sixty-five percent of the award was available for garnishment and that the remaining thirty-five percent was exempt. However, it also held that Mireles' attorney fees and costs for his workers' compensation attorney were payable from his exempt portion.

The court further determined that, because the award was not large enough to satisfy both child support judgments and because Garcia had filed her garnishment first, only Garcia could obtain a share of the workers' compensation award. Finally, the trial court ordered that Garcia should receive interest on the balance due her "as provided by law." This appeal by Mireles followed.

I.

Mireles asserts that the trial court erred in not first subtracting the attorney fees and costs incurred for his workers' compensation attorney from the $45,000 award before computing the percentage amount available for garnishment by Garcia. We disagree.

A.

Section 13-54-104, C.R.S. (1987 Repl.Vol. 6A) governs the amount of earnings available for garnishment by judgment creditors. As pertinent here, the statute authorizes the garnishment of "disposable earnings." "Earnings" includes workers' compensation awards.

When judgments for child support are involved, § 13-54-104(3), C.R.S. (1987 Repl.Vol. 6A) provides, in pertinent part:

(b)(I) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment or levy under execution or attachment to enforce any order for the support of any person shall not exceed:

(A) Where such individual is supporting his spouse or dependent child, other than a spouse or child with respect to whose support such order is used, fifty percent of such individual's disposable earnings for that week; and

(B) Where such individual is not supporting a spouse or dependent child as described in sub-subparagraph (A) of this subparagraph (I), sixty percent of such individual's disposable earnings for that week;

(II) With respect to the disposable earnings of any individual for any workweek, the fifty percent ... shall be deemed to be fifty-five percent and the sixty percent ... shall be deemed to be sixty-five percent if and to the extent that such earnings are subject to garnishment ... to enforce a support order with respect to a period which is prior to the twelve-week period which ends with the beginning of such workweek.

The statute states that "disposable earnings" are garnishable. That term is defined to mean "that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld." Section 13-54-104(1)(a), C.R.S. (1986 Repl.Vol. 6A).

Mireles claims that the amount of an attorney's lien is "required by law to be withheld," and therefore should not be calculated as part of the garnishable "disposable earnings." While there is no evidence in the record to indicate that any attorney's lien was actually asserted, even if we assume, without deciding, that an attorney's lien existed and was asserted here, we must disagree with this contention.

The phrase "required by law to be withheld" is not separately defined in the statute. Accordingly, we must look to the intention of the General Assembly in determining the meaning of this phrase. People v. McNeese, 892 P.2d 304 (Colo.1995). We first look to the plain language of the statute and give effect to statutory terms in accordance with their commonly accepted meaning. Jones v. Cox, 828 P.2d 218 (Colo.1992). When the statutory language is clear and unambiguous, there is no need to resort to interpretive rules and statutory construction. Griffin v. S.W. Devanney & Co., Inc., 775 P.2d 555 (Colo.1989).

"Require" in its ordinary context means to order or compel. See Black's Law Dictionary 1172 (5th ed.1979). Therefore, a party cannot be required to withhold payments due to another absent some kind of direction imposed by the law, such as a valid garnishment, court or administrative order, or other statutory mandate.

"Withhold" means, inter alia, to retain in one's possession that which belongs to or is claimed or sought by another. See Black's Law Dictionary 1437 (5th ed.1979). As such, the word is directed to the stakeholder of the particular fund. Thus, "withheld" in the context of the garnishment exemption statute means withheld by the employer.

Hence, if the employer is compelled or ordered by law to withhold payments due to the employee, such payments are not part of "disposable earnings."

Section 5-5-105(1)(a), C.R.S. (1992 Repl.Vol. 2), a portion of the Colorado Consumer Credit Code that restricts garnishment in certain situations, uses the phrase "disposable earnings" as well. Official Comment 3 to that statute states, in pertinent part:

Disposable earnings are defined to include only those earnings which the debtor can spend after deductions required by law. If the law requires a portion of the debtor's wages to be withheld from him, the debtor has no power of disposition with respect to that portion, and that portion is therefore not included in disposable wages. Thus, amounts required to be withheld for social security or income taxes, amounts withheld pursuant to compulsory retirement, health insurance or similar plans imposed by law and amounts withheld because of a garnishment or levy by another creditor are excluded from "disposable earnings."

An attorney's lien under § 12-5-119, C.R.S. (1991 Repl.Vol. 5A) is simply an asserted charge, security, or encumbrance upon certain property. See Black's Law Dictionary 832 (5th ed.1979). In our view, there is no legal requirement for the amount of an attorney's lien to be withheld by an employer until such time as the lien is properly enforced.

Hence, because the record does not disclose that any attorney's lien was properly enforced here, we conclude that the amount of the attorney's lien was not "required to be withheld" within the meaning of the statute. Consequently, the attorney fees were not statutorily required to be deducted before the garnishable percentage was calculated.

B.

In the alternative, Mireles claims that an attorney's lien has priority over a writ of garnishment for child support. Therefore, he reasons, the lien should have been satisfied from the total award first, and Garcia should have only been entitled to garnish the award amount remaining. Again, we disagree.

In our view, § 14-14-105, C.R.S. (1987 Repl.Vol. 6B) is fully dispositive of Mireles' contention. That statute states, in pertinent part:

A writ of garnishment for the collection from earnings of judgments for arrearages for child support, for maintenance when combined with child support, for child support debts ... shall be continuing; shall have priority over any garnishment, lien or wage assignment ... and shall require the garnishee to withhold, pursuant to section 13-54-104(3), C.R.S., the portion of earnings subject to garnishment at each succeeding earnings disbursement....

Because "earnings" includes workers' compensation benefits under § 13-54-104, and because the word "any" means "all," see Austin v. Board of County Commissioners, 702 P.2d 293 (Colo.App.1985), a writ of garnishment for child support arrearages takes priority over an attorney's lien, even though § 12-5-119 C.R.S. (1991 Repl.Vol. 5A) provides that the attorney has a "first" lien upon the specified property. Cf. In re Marriage of Etcheverry, 921 P.2d 82 (Colo.App.1996) (public policy prohibits an attorney's charging lien from attaching to child support payments).

Furthermore, because the statute applies here, Mireles' reliance upon Formal Ethics Opinion No. 94 of the Colorado Bar Association and Collins v. Thuringer, 92 Colo. 433, 21 P.2d...