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2002 OK CIV APP 10
38 P.3d 931
73 OBJ 417
Case Number: 95633
Decided: 11/27/2001
Mandate Issued: 01/11/2002

NADINE M. MONROY, Defendant/Appellant




Susan E. Lentz, Works & Lentz, Tulsa, Oklahoma, for Plaintiff/Appellee|
Laura Emily Frossard, John P. Kerr, Jr., Legal Services Of Eastern Oklahoma, Inc., Tulsa, Oklahoma, for Defendant/Appellant


¶1 The trial court defendant, Nadine M. Monroy (Monroy), appeals a decision which refused to retroactively refund to her the wages garnished by the trial court plaintiff, Hillcrest Medical Center (Hillcrest).


¶2 The essential facts are not disputed. Hillcrest holds a money judgment against Monroy which it obtained by default on May 16, 2000. On June 19, 2000, Hillcrest issued a one-time garnishment of Monroy's wages. Monroy filed a claim for exemption but failed to appear for the hearing on the claim. Consequently, the court denied the claim.

¶3 Thereafter, Hillcrest issued a continuing wage garnishment on July 13, 2000. Between July 13, 2000 and November 13, 2000, sundry amounts were withheld from Monroy's wages pursuant to the garnishment and paid to Hillcrest.

¶4 On October 31, 2000, Monroy filed a motion to exempt wages from garnishment on the ground of hardship. At the hearing on this motion, Monroy also requested a refund of all sums garnished under the continuing garnishment.

¶5 The trial court found that Monroy was presently, and for the future, entitled to an exemption of wages from garnishment on hardship grounds. The garnishment was stayed; however, the court denied, in part, Monroy's request for a refund. The court did direct a refund of the wages taken by garnishment from October 30, 2000, through the date of the hearing.

¶6 Monroy now appeals the court's decision which denied the full refund. The remaining aspects of the trial court's decision were not appealed by either party.


¶7 Where the facts are not disputed an appeal presents only a question of law. Baptist Bldg. Corp. v. Barnes,


¶8 The issue before this Court is: What relief may a trial court grant to a judgment debtor in the case of a continuing garnishment of wages to satisfy a money judgment, that does not involve child support, when that judgment debtor claims and establishes an exemption of wages from garnishment based upon hardship?

¶9 The original wage garnishment statute provided for a one-at-a-time method of garnishment. R.L. 1910, § 4822-4841. Now, the provision for a single wage garnishment for other than child support is

¶10 However, not all earnings may be reached by garnishment. The Homestead and Exemption statute exempts a percentage of earnings.

¶11 Section 851 was deemed an additional exemption. The purpose of the exemption was to protect the debtor's family from privation and to supply to them the minimum requirements from a decent and wholesome livelihood. Smith v. Britton,

¶12 The Legislature repealed Section 851 in 1965, but retained its essential provisions as part of the Homestead and Exemption Code as

¶13 In 1983, the garnishment statute and Section 1.1 were amended. The amendment removed the ninety day exemption and in its place made provision for the judgment debtor to request a hearing to exempt from the process "that portion of his earnings from personal services necessary for the maintenance of a family supported wholly or partially by the labor of the debtor." The amendment set forth criteria to guide the determination of whether hardship existed. These criteria were expressed in terms of standard of living and minimal subsistence level of living. Upon finding that a hardship existed, the statute provided that the trial court "may order all or a portion of the personal wages exempt." 1983 Okla. Sess. Laws, c. 50, § 6, eff. April 26, 1983;

¶14 The amendment provided that the garnishment statute procedures applied to the hearing on the exemption request. These procedures were contained in

¶15 Then, as stated before, in 1989 the Legislature enacted the different types of garnishment. The continuing garnishment remains as a single instance of garnishment. However, "now unlike the general garnishment statutes which contemplate a single summons and answer, the continuing garnishment statute requires multiple responses. Second, the statute specifically outlines the five contingencies which end the garnishment lien,

¶16 With the adoption of a "continuing earnings garnishment" an apparent need arose to revise the hardship exemption statute and the procedure to present the exemption. The criteria for exemption remained, but the provisions of Section 1.1 of Title 31 were amended to provide that upon finding of hardship the court may:

1. Order all or a portion of the personal wages exempt; or

2. In the case of a continuing wage garnishment pursuant to Section 1173.4 of Title 12 of the Oklahoma Statutes, modify or stay the garnishment.

1990 Okla. Sess. Laws, c. 248, § 9, eff. May 21, 1990.

¶17 This amendment to Section 1.1 left intact the provision that a judgment debtor may file an application for an exemption hearing with the proceeding to be conducted as provided in

¶18 With the 1995 amendment to Section 1172.2, potential confusion over whether a five-day rule or a ten-day rule or some other rule applied, with their corresponding beginning points and filing procedures. Then, the question became: What is the legal consequence of the specific omission, from Section 1.1 of Title 31, of the timing to apply for exemption established in Section 1174(C)?

¶19 Here, Hillcrest would have this Court fashion a cutoff date, whereas Monroy maintains that the claim for exemption may be filed at any time but must be by motion rather than the statutory form if filed after five days from the receipt of the notice that exemptions may be claimed. Thus, Hillcrest here argues that regardless of whether a court may modify a continuing earnings garnishment, a late filing operates as a time bar to retroactive modification.

¶20 First, this Court holds that Section 1174(C) does apply in cases of postjudgment continuing wage garnishments. Thus, under Section 1174(C), the judgment debtor may use either (1) the five-day period, provided in Section 1174(C), from receipt of the statutory notice form in which to request a hearing on exemption, including the hardship exemption under

¶21 It appears that this five-day procedure presents a one-time opportunity because the statute does not impose a continuous duty on the judgment creditor or the garnishee to notify the judgment debtor of the right to claim exemptions during the course of the continuing garnishment.

¶22 This holding comports with the general rules of statutory construction. Statutes dealing with the same subject matter, here exemptions from garnishment, must be construed together as a harmonious whole so as to give effect to each. Clifton v. Clifton,

57, ¶10,

¶23 Second, this Court holds that the trial court, upon hearing a statutory form application for exemption or motion for exemption, may modify or stay the garnishment.

¶24 As an equitable matter, and given that the judgment debtor has the burden of proof, the trial court must examine the total circumstances when deciding whether relief should be given. The initial inquiry seeks to determine whether hardship exists and the statute provides criteria for that judgment. However, in cases where the judgment debtor has delayed making a request for exemption, the inquiry should also determine when the hardship accrued, and the judgment debtor has the burden to make that showing. In this regard, the statute imposes a garnishment lien only upon the judgment debtor's property "due at the time of service or the effective date of the summons, to the extent that the property is not exempt from garnishment."

¶25 Here, based upon the agreed narrative, it appears that the trial court was concerned about its authority to order a retroactive refund and eventually ruled that no authority existed. However, as shown above the trial court's conclusion was erroneous.

¶26 The agreed narrative shows that Monroy presented facts consistent with a hardship since the inception of the continuing garnishment. On the other hand, Monroy's presentation concentrated upon an inability to pay her electric utility bill so that it accrued a substantial arrearage. The agreed narrative stated only that Monroy was "behind" in her electric bill, but does not advise whether electricity has been cut off or whether alternative arrangements could be made to pay that bill. Although electricity is certainly an element of a minimal level of subsistence, the issue is whether the lack of funds sought to be exempt "would be an undue hardship by creating a less than minimal level of subsistence."

¶27 The trial court did not make any finding regarding whether such hardship existed from the beginning. The trial court determined that a hardship presently exists and that decision is final. The appellate court does not make the first instance finding of fact as that is the function of the trial court. Davis v. Gwaltney,

¶28 Therefore, the decision of the trial court which denied refund of garnished earnings is reversed and the cause is remanded to the trial court to determine, first, whether a hardship resulting in exemption existed at any time since the inception of the continuing garnishment and, second, the time such hardship accrued. If the trial court finds that a hardship resulting in exemption did exist at some prior time, then from and after that time, the garnishment lien does not attach and the trial court shall order a refund of any such exempt earnings taken by garnishment.


¶30 STUBBLEFIELD, P.J., and TAYLOR, J., concur.


1 It must be noted that Section 1174(C) of Title 12 has language applicable to all post judgment garnishments and provides that the claim for exemption form must be filed within five days from the receipt of the form notice that the claim for exemptions may be presented. Section 1174(C) further provided that any exemption claim filed after such five day period must be by motion. Thus, given the multiple response aspects of the continuing garnishment, Section 1172.2 implied that a judgment debtor in cases of continuing earnings garnishment could apply within ten days of each response date. In 1995, Section 1172.2 was amended to remove the provision pertaining to an application for exemption filed within ten days of the answer date of the garnishee. 1995 Okla. Sess. Laws, c. 338, § 3, eff. Nov. 1, 1995.

2 After the continuing garnishment terminates there is no proceeding in which to file a request for exemption. Moreover, the lien established by the continuing garnishment expires. 12 O.S. Supp. 2000, §1173.4(G).

3 The Legislature subsequently changed the language interpreted in Cable Vision. Arrow Tool & Gauge v. Mead, 2000 OK 86, 16 P.3d 1120.