                                                                                      10/18/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                         Assigned on Briefs August 1, 2018

       JULIE ANN KENDLE v. MATTHEW DAVIS KENDLE ET AL.

                 Appeal from the Circuit Court for Wilson County
                        No. 5774    Clara W. Byrd, Judge
                    ___________________________________

                          No. M2017-02434-COA-R3-CV
                      ___________________________________

This appeal arises from an Order for Conditional Judgment to enforce a routine
garnishment of an obligor’s wages. The dispositive issue is whether an employer of an
obligor has an affirmative duty to determine whether the aggregate amount of wages to
be garnished from an obligor’s multiple employers exceeds the aggregate disposable
earnings limits provided in Tenn. Code Ann. § 26-2-106. An employer of the obligor,
Blue Shield EMS (“Blue Shield”), was served with a garnishment while a pre-existing
wage assignment of the obligor’s wages from another employer was still in effect.
Although none of the obligor’s wages from Blue Shield had been previously garnished,
Blue Shield filed an answer to the garnishment stating, “We cannot process any
deductions from [the obligor’s] paycheck at this time due to his total income already
being garnished greater than 25%.” Upon motion of the obligor’s former wife for a
conditional judgment, the trial court found that “Blue Shield did not have a valid legal
reason for failing to withhold twenty-five percent (25%) of the employee’s net wages”
and ordered Blue Shield to pay into the court the wages that should have been garnished
and to honor the garnishment going forward until the judgment was satisfied. Having
determined that an employer has no duty to consider the aggregate effect of garnishments
served on other employers when answering a garnishment, we affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which CHARLES
D. SUSANO JR. and BRANDON O. GIBSON, JJ., joined.

Andrew Tyler Whitaker, Sr. and William K. Cather, Lebanon, Tennessee, for the
appellant, Matthew Davis Kendle.

Chadwick Jackson Hayes and Blake Lawrence, Lebanon, Tennessee, for the appellee,
Julie Ann Kendle.
                                               OPINION

       Pursuant to a Final Decree of Divorce, the appellant, Matthew Davis Kendle
(“Father”), was ordered to pay spousal support to his former wife, Julie Ann Kendle
(“Mother”), and child support for the benefit of their minor child. Since the divorce,
Father incurred monetary judgments for failure to pay child support and spousal support
and for attorney’s fees related to the enforcement of a child support order.

       In August 2017, Mother served a garnishment on Blue Shield to satisfy a judgment
against Father for attorney’s fees incurred due to his failure to pay child support. Blue
Shield responded to the garnishment in a letter to the circuit court clerk stating, “We
cannot process any deductions from [Father’s] paycheck at this time due to his total
income already being garnished greater than 25%.” Although it is not mentioned in Blue
Shield’s letter to the clerk, a pre-existing wage assignment of twenty-six percent (26%)
on Father’s disposable pay from his primary employer, Wilson County Emergency
Management Agency (“WEMA”), was in effect.

        Unaware of Blue Shield’s letter to the clerk, Mother filed a Motion for Conditional
Judgment against Blue Shield for failing to honor the garnishment. Blue Shield’s attorney
filed a response, contending his client sent a letter to the circuit court clerk after receiving
the garnishment and restating that Father’s “aggregate income to be garnished exceed[ed]
the statutory amount of 25%.”

       At the hearing on the motion for the conditional judgment, Father and Blue Shield
argued that Blue Shield was precluded from garnishing Father’s wages because of the
pre-existing wage assignment of approximately 26%, pursuant to Tenn. Code Ann. § 36-
5-501, of his earnings from WEMA. They also argued, relying on Tenn. Code Ann. § 26-
2-224(a), that the garnishment could not attach to his earnings from Blue Shield
concurrently while the pre-existing wage assignment with WEMA remained in effect.1

       To support this reasoning, Blue Shield represented to the trial court that it used a
business form entitled “Administrative Wage Garnishment Calculator” which it obtained
from the United States Department of the Treasury.2 Furthermore, Blue Shield and Father

        1
           Tenn. Code Ann. § 26-2-224(a) reads: “Notwithstanding any other provision of law or rule to
the contrary, a writ of garnishment that is filed later in time than another such writ, and which deducts the
maximum amount allowable by law from the debtor’s wages, shall not run concurrently with the earlier
filed writ with regard to the six-month time limit prescribed in § 26-2-214. Such later filed writ of
garnishment shall not begin to run until the earlier filed writ’s judgment has been satisfied, such earlier
filed writ has expired, or such earlier filed writ has been stayed by installment motion as prescribed in §
26-2-216.”
        2
         The relevance or applicability, if any, of the form entitled “Administrative Wage Garnishment
Calculator” to garnishments of wages pursuant to Tenn. Code Ann. §§ 26-2-214, -216, and -224, and/or
                                                                                             (continued…)
                                                   -2-
argued that an employer who uses this form is first to calculate the maximum amount of
the employee’s earnings subject to garnishment under Tenn. Code Ann. § 26-2-106,
which is the lesser of 25% of the worker’s weekly disposable earnings or the amount by
which the disposable earnings for that week exceeds thirty (30) times the federal
minimum hourly wage at the time the earnings are due. They further claimed that the
employer is then to subtract from this amount “any amounts withheld under other wage
withholding orders with priority” in order to determine the amount the employer should
withhold. According to Blue Shield’s calculations, 25% of Father’s Blue Shield wages
(paid biweekly) would be $474.07. Father maintained that WEMA was already
withholding $491.99 from his biweekly earnings from that job. Because $474.99 minus
$491.99 yielded a negative number, Father and Blue Shield contended that Blue Shield
could not withhold any of Father’s Blue Shield earnings.

       Mother disputes the applicability and methodology of the “Administrative Wage
Garnishment Calculator.” She also contends that the 50% limit under Tenn. Code Ann. §
36-5-501(a)(1), not the 25% limit under Tenn. Code Ann. § 26-2-106, applies because the
judgment to be satisfied by the Blue Shield garnishment regarded a child support
obligation.

       Following the hearing and after finding that “[w]hatever is being deducted [from
Father’s wages at WEMA] pursuant to 36-5-501 has nothing to do with this entity of
Blue Shield Ambulance,” the trial court entered an order stating:

        2. [T]he Court finds that Blue Shield EMS did not have a valid legal reason
        for failing to withhold twenty-five percent (25%) of the employee’s net
        wages, after taxes, social security and Medicare deductions; therefore, Blue
        Shield EMS shall be required to immediately pay into the Circuit Court
        Clerk’s office the amount of wages that should have been garnished from
        the employee’s wages since the garnishment was served upon them on July
        31, 2017. That amount is One Thousand Two Hundred Sixty and 88/100
        Dollars ($1,260.88) through November 13, 2017 plus any court costs
        accrued in this matter;

                                                .    .    .




Tenn. Code Ann. § 36-5-501 is not established by any citation to authority in the record. The form
“Administrative Wage Garnishment Calculator” is provided by the “Bureau of the Fiscal Service,” which
identifies the U.S. Department of the Treasury as its parent agency. See https://www.usa.gov/federal-
agencies/bureau-of-the-fiscal-service. The Bureau of the Fiscal Service states that it “manages all federal
payments and collections, and provides government-wide accounting and reporting services,” including
“fiscal service forms.” Id.

                                                    -3-
      4. That Blue Shield EMS shall be required to honor the garnishment going
      forward, beginning with the employee’s next pay period and shall be
      required to deduct twenty-five percent (25%) of the employee’s net wages,
      after taxes, social security and Medicare deductions, from each of the
      employee’s paychecks and submit them to the Circuit Court Clerk’s office
      until the judgment has been paid in full.. . .

      This appeal followed.

                                                    ISSUES

        Father and Mother each raise one issue on appeal. Blue Shield does not challenge
the trial court’s order and is not a party to this appeal.

        Father’s issue, as we have rephrased it, is whether a garnishee has an affirmative
duty to consider all wages the obligor earns from other employers, as well as the amount
of wages being withheld by those employers, to determine whether its garnishment will
result in withholdings that exceed the aggregate disposable earnings limits provided in
Tenn. Code Ann. § 26-2-106.3 For her part, Mother contends the trial court erred by
limiting the garnishment to 25% of Father’s disposable income from Blue Shield instead
of 50%, the maximum permitted under Tenn. Code Ann. § 36-5-501(a)(1), to satisfy a
judgment pertaining to child support.

                                         STANDARD OF REVIEW

       The issues on appeal require us to construe a statute. Statutory interpretation is a
matter of law, which this court reviews de novo with no presumption of correctness
accorded to the trial court’s decision. Hayes v. Gibson County, 288 S.W.3d 334, 337
(Tenn. 2009).




      3
          Father’s issue, as stated in his brief, reads:

      IN DETERMINING WHETHER A GARNISHEE SHOULD OR SHOULD NOT
      WITHOLD THE DEMANDED AMOUNT FROM THE OBLIGOR EMPLOYEE’S
      WAGES PURSUANT TO A GARNISHMENT, DOES THE GARNISHMENT LIMIT
      OF 25% OF “AGGREGATE DISPOSABLE EARNINGS” PROVIDED IN TCA § 26-2-
      106 REQUIRE FACTORING IN A WAGE ASSIGNMENT FROM THE OBLIGOR’S
      WAGES FROM A SEPARATE EMPLOYER OR JUST OTHER WAGE
      WITHHOLDING ORDERS ALREADY BEING ENFORCED AGAINST THE
      OBLIGOR’S WAGES FROM THE GARNISHEED EMPLOYER ITSELF?

                                                      -4-
                                             ANALYSIS

       When interpreting a statute, our primary task is to ascertain and carry out the
General Assembly’s intent. Osborn v. Marr, 127 S.W.3d 737, 740 (Tenn. 2004). If the
statutory language is clear and unambiguous, we consider “the natural and ordinary
meaning of the statutory language,” and in doing so, we try to avoid a forced
interpretation that would broaden or restrict the statute’s meaning. Id. (quoting State v.
Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)). However, as our Supreme Court
explained:

       When courts are attempting to resolve a statutory ambiguity, the rules of
       statutory construction authorize them to consider matters beyond the text of
       the statute being construed. The courts may consider, among other things,
       public policy, historical facts preceding or contemporaneous with the
       enactment of the statute being construed, and the background and purpose
       of the statute. The courts may also consider earlier versions of the statute,
       the caption of the act, the legislative history of the statute and the entire
       statutory scheme in which the statute appears.

Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 527-28 (Tenn. 2010).

                                  I. DUTIES OF AN EMPLOYER

       Contrary to Father’s contentions, Tennessee’s statutory scheme does not place an
affirmative duty on an employer to consider any wages the obligor employee earns from
other employers or the amount of wages being withheld by those employers. This is
significant because garnishment is purely a statutory proceeding and is in derogation of
the common law. General Truck Sales, Inc. v. Simmons, 343 S.W.2d 884, 885 (Tenn.
1961); Third Nat’l Bank v. Bradley, No. 85-312-II, 1986 WL 5548, at *2 (Tenn. Ct. App.
May 14, 1986). Moreover, as this court noted years ago while identifying the duties of the
garnishee, “[o]ur statutes creating the [garnishment] proceeding and giving it direction
are found in T.C.A. §§ 26-2-201 et seq.” Bradley, 1986 WL 5548, at *2. Thus, a
garnishee has no duty unless such a duty is set forth in Tenn. Code Ann. §§ 26-2-201 to -
410 or case law interpreting the statutory scheme.4

       4
          It should additionally be noted that Rule 69.05 of the Tennessee Rules of Civil Procedure
provides in pertinent part:

       (3) Garnishee’s Duty Upon Service. The garnishee by the next business day after service
       shall ascertain whether the garnishee holds property of the debtor. If so, the garnishee
       shall mail one copy of the writ of garnishment with the notice to the last known address
       of the judgment debtor. Where the garnishee is a financial institution, the balance in the
       judgment debtor’s accounts on the night of the service date is the amount subject to that
       garnishment writ.

                                                 -5-
       As for the duties of garnishees in general, we begin by noting that a garnishee is
only liable for the property, debts, and effects of the obligor that are in the possession or
under the control of the garnishee. This is evident from the plain reading of Tenn. Code
Ann. § 26-2-202:

       All property, debts and effects of the defendant in the possession or under
       the control of the garnishee shall be liable to satisfy the plaintiff’s
       judgment, from the service of the notice, or from the time they came into
       the plaintiff’s hands, if acquired subsequent to the service of notice, and
       before judgment.

(Emphasis added). Thus, it is what is in the possession or under the control of the
garnishee that is subject to the garnishment as distinguished from what may be in the
possession or under the control of another. Id. The rationale of the “in possession and
under the control of the garnishee” limitation is also readily evident from our ruling in
Erlanger Med. Ctr. v. Strong, 382 S.W.3d 349, 353 (Tenn. Ct. App. 2012). In Erlanger,
we held that tips received by restaurant servers directly from customers “are not to be
included in the calculation of disposable earnings for the purposes of garnishment,”
because they do not pass from employer to employee. Id. Stated another way, tips are not
to be included because they are not in the possession or control of the employer. See
Tenn. Code Ann. § 26-2-202.

       As for the specific duties of a garnishee who is the employer of the obligor, those
duties are clearly stated in Tenn. Code Ann. § 26-2-214, the relevant provisions of which
read as follows:

       (a) Upon the garnishment of earnings due from a garnishee, the garnishee
           shall:

              (1) Pay the judgment debtor the amount of such debtor’s
              exempt earnings;

              (2) Submit as a part of the judgment debtor’s answer to the
              garnishment a statement of the judgment debtor’s dependent
              children under sixteen (16) years of age who are residents of
              this state; and

              (3) Furnish the judgment debtor with a copy of the
              garnishment summons containing the notice of the judgment
              debtor’s right to the exemptions from wage garnishment
              specified in federal law and in §§ 26-2-106 and 26-2-107 of
              the right to apply to the court for an order staying further

                                            -6-
             garnishment and allowing the judgment debtor to pay the
             judgment in installments, and of procedures the judgment
             debtor can follow to contest the garnishment.

      (b)(1) To the extent of the amount due upon the judgment and costs, the
      garnishee shall hold, subject to the order of the court, any nonexempt
      earnings due or that subsequently become due. The judgment or balance
      due is a lien on earnings due at the time of the service of the execution. The
      lien shall continue as to subsequent earnings until the total amount due
      upon the judgment and costs is paid or satisfied, or until the expiration of
      the payment period immediately prior to six (6) calendar months after
      service of the execution, whichever occurs first. The lien on subsequent
      earnings shall terminate sooner if the relationship between judgment debtor
      and garnishee is terminated or if the underlying judgment is vacated or
      modified.

       In addition to the duties of the employer of the obligor specified above, all
garnishees may be required to file an answer under oath to the garnishment. Tenn. Code
Ann. § 26-2-204(a). The information that the garnishee must provide in the answer to be
filed with the issuing court within ten days includes:

             (1) Whether such garnishee is, or was at the time of the
             garnishment, indebted to the defendant; if so, how and to
             what amount;

             (2) Whether such garnishee had in possession or under such
             garnishee’s control any property, debts, or effects belonging
             to the defendant, at the time of serving the notice, or has at
             the time of answering, or has had at any time between the
             date of service and the time of answering; if so, the kind and
             amount;

             (3) Whether there are, to such garnishee’s knowledge and
             belief, any and what property, debts, and effects in the
             possession or under control of any other, and what, person;

             (4) Such other questions appearing on or attached to the
             original execution put to the garnishee by the court of the
             judgment creditor as may tend to elicit the information
             sought.

Id. This answer can be made “initially either in person or by filing a written answer.”
Tenn. Code Ann. § 26-2-204(b).

                                          -7-
      When ascertaining the wages of the obligor employee, as well as calculating the
aggregate disposable earnings that are subject to garnishment, the garnishee employer is
to make such determinations pursuant to Tenn. Code Ann. § 26-2-106, which states:

      (a) The maximum part of the aggregate disposable earnings of an
      individual for any workweek which is subjected to garnishment may not
      exceed:

                (1) Twenty-five percent (25%) of the disposable earnings for
                that week; or

                (2) The amount by which the disposable earnings for that
                week exceed thirty (30) times the federal minimum hourly
                wage at the time the earnings for any pay period become due
                and payable, whichever is less.

      (b) In the case of earnings for any pay period other than a week, an
      equivalent amount shall be in effect.

      (c) The debtor shall pay the costs of any and all garnishments on each debt
      on which suit is brought.

       As noted earlier, garnishment proceedings are purely statutory and “[o]ur statutes
creating the [garnishment] proceeding and giving it direction are found in T.C.A. §§ 26-
2-201 et seq.” Bradley, 1986 WL 5548, at *2. Neither the foregoing statutes nor any other
provisions in Tenn. Code Ann. §§ 26-2-201 to -410 impose a duty on a garnishee
employer to consider the effect of wage assignments or garnishments on the obligor’s
other employers.

       It is also relevant that Tennessee’s garnishment protocol under Tenn. Code Ann. §
26-2-106 is almost verbatim to the federal Consumer Credit Protection Act (“CCPA”),
specifically 15 U.S.C. § 1673.5 This close modeling is significant because the legislative

      5
          15 U.S. Code § 1673, Restriction on garnishment, provides:

      (a) Maximum allowable garnishment. Except as provided in subsection (b) of this section
      and in section 1675 of this title, the maximum part of the aggregate disposable earnings
      of an individual for any workweek which is subjected to garnishment may not exceed
              (1) 25 per centum of his disposable earnings for that week, or
              (2) the amount by which his disposable earnings for that week exceed thirty
              times the Federal minimum hourly wage prescribed by section 206(a)(1) of title
              29 in effect at the time the earnings are payable, whichever is less. In the case of
              earnings for any pay period other than a week, the Secretary of Labor shall by
                                                                                          (continued…)
                                                 -8-
history of 15 U.S.C. § 1673 and the CCPA, as a whole, reveal that one of the principal
goals of the legislation was to lessen the burden on employers when responding to
garnishments while protecting the interests of individual debtors. See Kokoszka v.
Belford, 417 U.S. 642, 650-51 (1974). These goals are evident from specific findings
Congress made in the enactment of the CCPA. Under the section titled Disadvantages of
Garnishments in 15 U.S.C. § 1671(a)(2), Congress made the finding that the garnishment
of an employee’s wages “frequently result[ed] in loss of employment.” The reasons for
such were explained by corporate representatives who testified in a congressional
subcommittee hearing that “garnishment deductions from the wages of their employees
was a heavy, unwanted administrative expense.” Brennan v. Kroger Co., 513 F.2d 961,
963 (7th Cir. 1975) (Citing 114 Cong. Rec. 1833 (1968)). Thus, one of the purposes
behind the restrictions on garnishment was to address “the evils that befall [the employer-
employee] relationship when wages are garnished.” Dunlop v. First Nat. Bank of Arizona,
399 F. Supp. 855, 856 (D. Ariz. 1975).

       What is most significant to the specific issue here is Congress recognized that
overcomplicating the garnishment process would burden employers with unreasonable
administrative demands. See Brennan, 513 F.2d at 964. The problem as recognized by
Congress was that the administrative expenses and burdens provided employers with the
incentive to remove the obligor employees from their payrolls. Id. This would obviously
countervail another central purpose of the garnishment regulations: to protect the
obligors’ employment so that they may provide for themselves and their dependents. Id.


               regulation prescribe a multiple of the Federal minimum hourly wage equivalent
               in effect to that set forth in paragraph (2).

       (b) Exceptions
       […]
               (2) The maximum part of the aggregate disposable earnings of an individual for
               any workweek which is subject to garnishment 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), 50 per centum of such individual’s disposable earnings for that
                       week; and
                       (B) where such individual is not supporting such a spouse or dependent
                       child described in clause (A), 60 per centum of such individual’s
                       disposable earnings for that week;
               except that, with respect to the disposable earnings of any individual for any
               workweek, the 50 per centum specified in clause (A) shall be deemed to be 55
               per centum and the 60 per centum specified in clause (B) shall be deemed to be
               65 per centum, 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.


                                                 -9-
       For the foregoing reasons, and specifically because the statutory scheme found in
Tenn. Code Ann. §§ 26-2-201 to -410 does not impose a duty on a garnishee employer to
consider the effect of wage assignments or garnishments on the obligor’s other
employers, we conclude that no such duty exists. See Bradley, 1986 WL 5548, at *2.
Therefore, we affirm the trial court’s determination that “Blue Shield did not have a legal
reason for failing to withhold twenty-five percent (25%) of the employee’s net wages.”

                          II. TENN. CODE ANN. § 36-5-501(A)(1)

       Mother argues the trial court erred by limiting the garnishment to 25% of Father’s
earnings from Blue Shield. Relying upon Tenn. Code Ann. § 36-5-501(a)(1), she
contends the court was required to set the garnishment at 50% of his earnings. We have
determined that Mother has misconstrued the 50% provision to constitute a minimum as
distinguished from a maximum limitation.

        Tenn. Code Ann. § 36-5-501(a)(1), the statute Mother relies on, states in pertinent
part:

        For any order of child support issued, modified, or enforced on or after July
        1, 1994, the court shall order an immediate assignment of the obligor’s
        income, including, but not necessarily limited to: wages, salaries,
        commissions, bonuses, workers’ compensation, disability, payments
        pursuant to a pension or retirement program, profit sharing, interest,
        annuities, and other income due or to become due to the obligor. . . . The
        court’s order, shall include an amount sufficient to satisfy an accumulated
        arrearage, if any, within a reasonable time. . . . Withholding shall not
        exceed fifty percent (50%) of the employee’s income after FICA,
        withholding taxes, and a health insurance premium that covers the child,
        are deducted. . . .

Tenn. Code Ann. § 36-5-501(a)(1) (emphasis added).

       A plain reading of the statute reveals that the trial court may withhold an amount
up to but not to “exceed fifty percent (50%) of the employee’s income” after a certain
specified deduction. Id. However, contrary to Mother’s contention, the statute does not
mandate this percentage of withholding as a minimum. Instead, the court may order the
withholding of an amount “sufficient to satisfy an accumulated arrearage, if any, within a
reasonable time,” provided that amount does not exceed the 50% limitation. Id. The
record before us does not preponderate against the trial court’s finding that a withholding




                                           - 10 -
of 25% is sufficient to satisfy the child support judgment. Accordingly, we find no error
with the trial court setting the withholding at 25%.6

                                        III. ATTORNEY’S FEES

       Relying on Tenn. Code Ann. § 27-1-122, Mother requests that this court award her
attorney’s fees she incurred on appeal. The statute provides that when an appeal was
frivolous or taken solely for delay, the appellate court may award just damages against
the appellant, which may include, but need not be limited to, costs, interest on the
judgment, and expenses incurred by the appellee as a result of the appeal. Id. We have
determined this appeal was not frivolous and not taken solely for delay. Therefore, the
request is respectfully denied.

                                           IN CONCLUSION

      The judgment of the trial court is affirmed and costs of appeal are assessed against
the Appellant, Matthew Davis Kendle.


                                                           ________________________________
                                                           FRANK G. CLEMENT JR., P.J., M.S.




        6
           It is also relevant that an income wage assignment is not required under Tenn. Code Ann. § 36-
5-501 “[i]f there is a written agreement by both parties that provides for alternative arrangements.” Tenn.
Code Ann. § 36-5-501(a)(2)(A)(ii). As this record reveals, the parties entered into a wage assignment
agreement pursuant to which 26% of Father’s income from WEMA is being withheld and which remains
in effect.

                                                  - 11 -
