Help with a wage garnishment

[chico landlord]

What is the name of your state (only U.S. law)? Ca. I have a judgment from 2012 against an ex-tenant . I did a wage garnishment against him and his employer did not withold earnings due to a child support order . The sheriff informed me that his child support order is an assignment not a garnishment so they should have paid this judgment . I am unsure what to do at this point , should I inform his employer of this ? Is the sheriff right? Any help would be appreciated.

 

[dcatz]

I suspect that this is a semantic problem more than a collection problem, because “assignment” (as used in connection with enforcement) doesn’t normally occur in conjunction with child support, but I suppose anything is possible, and EWOs (earnings withholding order) occasionally go unpaid, rightly or wrongly.

Assume a properly-served EWO. That creates an execution lien for the money that the employer should have paid to you via remittance(s) to the Sheriff. You can enforce your rights informally (e.g. by discussion with the employer to confirm that the debtor is still employed, that the employer has been served, that there are no prior EWOs etc.) or formally (e.g. by letting the arrearage mount and filing a Creditor’s Suit against the employer (CCP §708.210))

Recognize that there are pros and cons to waiting until a creditor’s suit becomes worthwhile. Recognize that, if there is an existing levy for up to 25% of the debtor’s earnings already in place, yours cannot kick in until the prior levy is satisfied. Recognize that child support orders can theoretically last a very long time (longer than a judgment, without renewal.) Before chasing any or all of these considerations, when they may be irrelevant to you, more information is needed. Have you spoken to the employer? What was said? It’s very unusual for the Sheriff to venture an opinion that your levy should have been honored. Again, why and what was said?

Most of all, recognize that all of the other factors are subordinated to the debtor’s claims of exemption. If between the child support obligation and enforcement of your rights, the debtor is not able to recognize the “basic necessities of life", you’re going to wait until he can or, at best, be satisfied with a very small and slow recovery

 

[TinkerBelleLuvr]

Child support orders will come first.

 

[dcatz]

Agreed, but it’s presently not that simple and that doesn’t answer the OP’s questions or make the Sheriff’s opinion less confusing or apparently obfuscating. In fact, investigation will likely reveal that nobody is really wrong and the OP is caught in that semantic muck.

The difference between a wage assignment and a wage attachment is that the former is voluntary and the latter is most commonly the byproduct of a garnishment and is involuntary. Both do result in wage withholding, so the withholding can be voluntary or involuntary. More is speculation, while awaiting the OP’s response, but I believe it’s informed speculation. I also am sorry to see that the best-laid plans of mice and men . . . .

If the child support withholding is a voluntary assignment, there is no involuntary enforcement taking precedence over the OP’s garnishment. The Sheriff is right and the employer is wrong for the moment. If the parties don’t find a away to mediate a mutually acceptable resolution to this conundrum without the need for further litigation, which could conceivably leave the debtor further financially disadvantaged, I don’t see a chance that this situation will last any longer than it takes the beneficiaries of the support order to get into Court and make the withholding involuntary (and perhaps go after the OP for any financial benefits realized in the interim).

Child support withholding can be greater than the 25% which caps the garnishment and, if this is done a second time, I expect it will be done in a way that a judgment debtor can’t/won’t undo it. If I were in the OP’s shoes, I would find out for myself exactly what the Sheriff has going presently by examining existing instructions. If the debtor is subject to a support order for a now-5-yr.-old until majority, it’s time to consider Plan B.

 

[LdiJ]

What is the name of your state (only U.S. law)? Ca. I have a judgment from 2012 against an ex-tenant . I did a wage garnishment against him and his employer did not withold earnings due to a child support order . The sheriff informed me that his child support order is an assignment not a garnishment so they should have paid this judgment . I am unsure what to do at this point , should I inform his employer of this ? Is the sheriff right? Any help would be appreciated.

The sheriff is wrong.

Wages can only be garnished up to a certain amount. For regular debt that amount is 25% of net wages. Most likely the child support order is already greater than 25% of net wages, therefore it would be illegal for an employer to withhold more than that for a garnishment. Child support can be garnished up to 50% (and sometimes a bit higher depending on the circumstances and state) but not regular debt.

 

[dcatz]

Disagree. If the withholding for a support order is an assignment, the withholding is voluntary. You may well be right and the amount is greater than 25% of disposable income. But if it is not involuntary, it is not a garnishment. It is an assignment. Us calling it something else does not make it so. If there is no involuntary enforcement, the Sheriff is entitled to treat the OP’s as the first and only.

I understand what you’re saying. I understand what they thought when then did it. They didn’t do it in a way that would immunize them and they have to fix that. We don’t live in Wonderland. A thing isn’t a garnishment because I say it is. The Sheriff wasn’t attempting to be right or wrong; he was factual and he had/has an assignment. I don’t expect it to stay voluntary, if the parties don’t have a meeting of the minds and enforcement is pursued. It’s also possible that the support order gave the debtor a choice of assignment or enforcement. That wouldn’t be unheard of. But choosing “voluntary” is inconsistent with a garnishment and that’s is the only way the posted facts make sense, absent further supplement

 

[Zigner]

Disagree. If the withholding for a support order is an assignment, the withholding is voluntary.

"Assignment" is an inaccurate term. It's still an Income Withholding Order:

(from http://www.childsup.ca.gov/Employer/EmployerGeneralFAQs.aspx)

What is an IWO? What is an Order/Notice to Withhold Income for Child Support (FL-195)?
An IWO, or Order/Notice to Withhold Income for Child Support (FL-195), also called the Income Withholding for Support , is a court order served on employers, which requires them to garnish or withhold an employee’s wages for payment of child support. This form may also be referred to as: wage assignment, garnishment order, and income withholding order. You may be served by a local child support agency (LCSA), private party, or another state’s child support agency.

 

[dcatz]

Zigner, I’m not sufficiently invested in this type of enforcement to engage in “dueling” forms. I believe you’re wrong.

If you wish to research, there is ample authority for voluntary assignment orders in support of child support orders and the relevant Judicial Council form is FL-450. You explain to the OP why he and the Sheriff are wrong. I don’t have the same interest or time to devote and don’t care about having a dog in this fight. I began by thinking the Sheriff was wrong and now think he was right but probably misguided in the sense of long-term utility. I still think that and even this follow-up takes too much of my time. Your post is not relevant when you say assignment is not an accurate term.

 

[Zigner]

Zigner, I’m not sufficiently invested in this type of enforcement to engage in “dueling” forms. I believe you’re wrong.

If you wish to research, there is ample authority for voluntary assignment orders in support of child support orders and the relevant Judicial Council form is FL-450. You explain to the OP why he and the Sheriff are wrong. I don’t have the same interest or time to devote and don’t care about having a dog in this fight. I began by thinking the Sheriff was wrong and now think he was right but probably misguided in the sense of long-term utility. I still think that and even this follow-up takes too much of my time. Your post is not relevant when you say assignment is not an accurate term.

Child Support Orders are done on FL-195. Even the instructions for form FL-450 refer to form FL-195 as in Income Withholding Order (not an assignment.)

My post is entirely relevant because you seem to rely on the word "assignment" to somehow claim that the Income Withholding ORDER is an assignment that can be superseded by our OP's order. (It's not)