60-721. Judgment in garnishment proceedings. (a) Upon determination of the issues, either by admissions in the answer or reply, or by default, or by findings of the court on controverted issues, judgment shall be entered fixing the rights and liabilities of all the parties in the garnishment proceedings (1) by determining the liability of garnishee upon default, or (2) discharging the garnishee, or (3) making available to the satisfaction of the claim of the plaintiff any indebtedness due from the garnishee to the defendant or any property in the hands of the garnishee belonging to the defendant, including ordering the payment of money by the garnishee into court, or the impoundment, preservation and sale of property as provided for the disposition of attached property, or (4) rendering judgment against the garnishee for the amount of his or her indebtedness to the defendant or for the value of any property of the defendant held by the garnishee, and (5) if the answer of a garnishee is controverted without good cause, the court may award the garnishee judgment against the party controverting such answer damages for his or her expenses, including reasonable attorneys' fees, necessarily incurred in substantiating the same.
(b) When judgment is entered in garnishment proceedings for the purpose of enforcing an order of any court for the support of any person and the court finds that a continuing order of garnishment is necessary to insure payment of a court order of support, the court may issue a continuing order of garnishment to allow any indebtedness that will become due from the garnishee to the defendant because of an employer-employee relationship to be made available to the plaintiff on a periodic and continuing basis for so long as the court issuing the order may determine or until otherwise ordered by such court in a further proceeding. No order may be made pursuant to this subsection (b) unless the court finds that the defendant is in arrearage of a court order for support in an amount equal to or greater than one year of support as ordered and the defendant receives compensation from his or her employer on a regular basis in substantially equal periodic payments. On motion of a defendant who is subject to a garnishment order pursuant to this subsection (b), the court for good cause shown may modify or revoke any such order.
(c) All orders and judgments in any garnishment proceeding shall be subject to the provisions of K.S.A. 60-727 and amendments thereto.
History: L. 1963, ch. 303, 60-721; L. 1978, ch. 227, § 4; L. 1996, ch. 71, § 2; April 4.
Source or prior law:
L. 1889, ch. 151, §§ 7, 11, 15, 19; L. 1909, ch. 182, §§ 235, 239, 243, 247; R.S. 1923, 60-947, 60-951, 60-955, 60-959; L. 1961, ch. 275, § 1.
Law Review and Bar Journal References:
"Wage Garnishment: Reform of the Law in Kansas," Richard S. Wetzler, 18 K.L.R. 925, 936 (1970).
"Recovery of Attorney Fees in Kansas," Mark A. Furney, 18 W.L.J. 535, 561 (1979).
"Survey of Kansas Law: Civil Procedure," Jerry G. Elliott, 27 K.L.R. 185, 188 (1979).
"42 U.S.C. § 659 and the Kansas Order of Garnishment," James R. Russell, 48 J.B.A.K. 37, 40 (1979).
"Garnishment in Kansas: A Procedural Paradox," Leon B. Graves, 49 J.B.A.K. 129, 136 (1980).
"Little Used Procedures for Collecting Child Support and Maintenance," Charles F. Harris, Vol. VIII, No. 5. J.K.T.L.A. 9 (1985).
"Sanctions Against Lawyers," Tim Alvarez, J.K.T.L.A., Vol. XIII, No. 1, 7, 8 (1989).
"Plaintiff's Guide To Court Awarded Attorney Fees," Gerald W. Scott and Mark A. Scott, J.K.T.L.A. Vol. XVII, No. 6, 4 (1994).
CASE ANNOTATIONS
Prior law cases, see G.S. 1949, 60-947, 60-951, 60-955, 60-959 and the 1961 Supp. thereto.
1. In statutory remedy of garnishment, issues of fact are triable to court; jury trial may not be demanded as a matter of right. Bollinger v. Nuss, 202 Kan. 326, 342, 449 P.2d 502.
2. Mentioned in holding that procedure of garnishment provides a remedy to a judgment creditor against the insurance carrier of his judgment debtor. Gilley v. Farmer, 207 Kan. 536, 540, 485 P.2d 1284.
3. Provisions of K.S.A. 40-256 authorizing attorney fees in actions on insurance policies takes precedence over this section; fees properly awarded. Coleman v. Holecek, 542 F.2d 532, 533, 539.
4. Not exclusive regarding attorney fees where action based on insurance statutes (K.S.A. 40-256, 40-2004). Farmco, Inc. v. Explosive Specialists, Inc., 9 Kan. App. 2d 507, 510, 684 P.2d 436 (1984).
5. Cited; court's orders determining rights and liabilities of all parties to create appealable judgment examined. Citizens State Bank of Grainfield v. Kaiser, 12 Kan. App. 2d 530, 534, 539, 750 P.2d 422 (1988).
6. Cited; attorney fees assessed against plaintiff's counsel for pursuing punitive damages unreasonable and in bad faith (K.S.A. 60-2007) examined. Rood v. Kansas City Power & Light Co., 243 Kan. 14, 22, 755 P.2d 502 (1988).
7. Cited in holding creditor's garnishment order attaches only to discretionary trust funds paid directly to beneficiary; continuing garnishment void. Wilcox v. Gentry, 18 Kan. App. 2d 356, 363, 853 P.2d 74 (1993).
8. Party claiming trial court erred by awarding attorney fees failed to provide sufficient record for review. Sours v. Russell, 25 Kan. App. 2d 620, 630, 971 P.2d 1210 (1998).
9. Garnishment is a special and extraordinary remedy and is exclusive to all other provisions of code of civil procedure; attorney fees may be awarded under K.S.A. 60-721 but attorney fees awarded under K.S.A. 60-1610 may not be recovered under K.S.A. 60-721; conditions of supersedeas bond, requested by defendant, providing for partial payment of judgment amounted to acquiescence in judgment. Vanover v. Vanover, 26 Kan. App. 2d 186, 188, 189, 191, 987 P.2d 1105 (1999).
10. No error in denying attorney fee to garnishee as garnishor had good cause to controvert garnishee's answer. Fletcher v. Anderson, 29 Kan. App. 2d 784, 31 P.3d 313 (2001).
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