U.S. v. Kaye, 3:93CR00072 (PCD).

• Citation: 93 F.Supp.2d 196
• Decision Date: 01 March 2000
• Docket Number: No. 3:93CR00072 (PCD).,3:93CR00072 (PCD).
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Daniel K. KAYE.

93 F.Supp.2d 196

UNITED STATES of America v. Daniel K. KAYE.

No. 3:93CR00072 (PCD).

United States District Court, D. Connecticut.

March 1, 2000.

Nora R. Dannehy, U.S. Attorney's Office, Hartford, CT, for Plaintiff.

John R. Gulash, Jr., Gulash & Riccio, Bridgeport, CT, Michael O. Shechan, Sheehan & Reeve, New Haven, CT, for Defendant.

MEMORANDUM RE WAGE GARNISHMENT

DORSEY, District Judge.

Defendant's conviction resulted in a sentence and order of restitution of $705,710 which constitutes a judgment against defendant in that amount. 18 U.S.C. § 3664(o). Restitution has been paid in the amount of $4,320, leaving $701,390 unpaid. Defendant has served his sentence of incarceration and supervised release.

The government requested a wage garnishment, in the face of defendant's clear intention to make no further payments since his supervision has expired and he is no longer subject to the orders of a probation officer. Defendant requested a hearing on the issuance of a garnishment, citing the needs of his family and the excessive amount withheld from his pay. Because garnishment has not been served on defendant's employer, the request is premature. The parties were heard on February 10, 2000, to expedite the matter. Defendant's affidavit of that date was reviewed as to his household income and asserted expenses.

Defendant's Memoranda do not contest the entitlement of the Government to a Wage Garnishment. He argues that the court can and should order garnishment of less than 25% of defendant's net weekly wages because only 75% thereof precludes his meeting his family's needs.

On compliance with the procedures set forth in 28 U.S.C. § 3205, "the court shall issue a writ of garnishment." § 3205(c)(1). As no challenge to the procedures followed is briefed, the question is whether garnishment may be specified in an amount less than 25% of defendant's disposable net earnings. The writ reaches "property in which the debtor has a substantial nonexempt interest", including "nonexempt disposable earnings," §§ 3205(a) and (c)(2)(F), which is defined as "25% of disposable earnings." § 3002(9). "Disposable earnings" is defined as "that part of earnings remaining after all deductions required by law have been withheld." § 3002(5). Fifteen U.S.C. § 1673 sets a maximum reach for a garnishment at 25% of disposable earnings or the excess of his disposable earnings over thirty times the minimum hourly wage, 29 U.S.C. § 206(a)(1), whichever is less. The latter is not claimed to pertain.

The issue thus presented is whether, pursuant to the statutory mandate, the garnishment must be 25% of defendant's disposable earnings or may it be specified in a lesser amount on the basis of defendant's need to support his dependents reasonably. The government contends that no discretion is allowed and garnishment of 25% is required. Defendant contends that discretion to garnish less than 25% is allowed and that a valid basis for doing so exists in the expenses reasonably required for that support.

The government argues that 25% is mandated by the authority to garnish property including nonexempt disposable earnings, § 3205(a), defined as "25 per cent of disposable earnings." § 3002(9). Read together, and apart from other considerations, the cited sections sustain the government's claim. Defendant neither argues to the contrary nor contests the limiting language of § 3202(d), which makes no allowance for consideration of debtors' dependent support obligations in reduction of the 25%. He argues that the analysis requires consideration of §§ 3013 and 3102(g) and state laws on attachment.

In § 3013, the court is authorized to deny, limit, condition, regulate, extend or modify "the use of any enforcement procedure under this chapter [i.e., Chapter 176 of Title 28, in part pertinent to garnishments to collect judgments]." Defendant cites no authority, nor is any found, for the proposition that § 3013 allows modification of the 25%. He relies on the plain import of the section's language. The government notes that the purpose of § 3013 is to permit modification to prevent abuse which affords no protection where defendant "does not [] claim any property exemptions with respect to his `non-exempt' disposable earnings." Gov't's Mem. at 3. The government would limit the relief available to prevent garnishment of exempt property, disruption of a defendant's financial affairs, or overkill in the remedies utilized. It does not follow that the language of § 3013 should be so limited. While no criteria for an order is found in § 3013, it is not inappropriate to apply a concept of reasonableness to the exercise of § 3013 authority.

Next the government stresses the need for uniformity in debt collection, denying the court "wide latitude" to modify collection procedures otherwise available. The Congressional Record refers to "affording fundamental protections to the rights of all individuals." 136 Cong. Rec. H13288-02, 13290. Nothing in § 3013 suggests that differing circumstances of different debtors is to be ignored. Thus § 3013 authorizes tempering of the procedures in Chapter 176 by such reasonable circumstances as are shown in particular cases.

The government turns to § 3202(d), which authorizes the court to entertain a motion to quash a remedy granted, including a garnishment. To quash is "to discharge, to annul, to end, to void, to extinguish". Webster's Third New Int'l Dictionary 1861 (1981). That concept would extend a court's authority beyond the authority of § 3013 to modify. That concept would not, either expressly or by implication, preclude a modification. Thus the section would not seem applicable to a request for modification of a remedy. The limits of the grounds on which to quash specified in § 3202(d), which pertain to matters fundamentally requisite to a grant of a remedy, would not apply. As the government argues, Congress could have specified financial circumstances as a ground for modification of a remedy but such an addition would be incorporated more logically in § 3013. The lack of such language in 3202(d) does not control since that section pertains not to modifying a remedy but to vitiating it. The lack of such language does not support an argument that Congress did not intend to permit consideration of financial circumstances in weighing the precise collection remedy to be allowed. United States v. Mahar, 42 F.3d 1389, 1994 WL 657089 (6th Cir.1994), if accurately characterized by the government and if properly considered (the cite is to an affirmance without a published opinion), would not control as defendant seeks to modify not quash, and thus is not subject to § 3202(d).

The government argues that defendant's reliance on § 3102(g) is mistaken in that it pertains not to a debt collection procedure but a pre-trial attachment. That section is found in Chapter 176, Subchapter B which is entitled "Prejudgment Remedies". The section refers to an excessive attachment and provides for reduction or dissolution. By its terms, its placement in the U.S.C., and the nature and effect of an attachment, a § 3102(g) modification cannot pertain to a debt collection remedy. Further, § 3102(a) precludes attachment of earnings making § 3102(g) inapplicable.

Defendant's reliance on § 3014 is also misplaced, as § 3014 allows a debtor to claim an exemption created by state law. Conn.Gen.Stat. § 52-361a(f), cited by defendant, creates no exemption. Garnishment is allowed but subject to a 25% restriction. It further allows a modification if reasonable, a holding found to include consideration of the debtor's financial circumstances. Hartford Postal Employees Credit Union v. Rosemond, 33 Conn.App. 395, 400, 635 A.2d 876 (1994).

Thus modification of the garnishment is found to be within the discretion of the court by virtue of § 3013. Defendant states his net monthly income (taken to equate to disposable income, though not so confirmed) to be $2,912.¹ His wife's net income is stated to be $1,495. While Mrs. Kaye's income is not considered as available to...