                                           No. 116,666

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      LEAF FUNDING INC.,
                                           Appellee,

                                                 v.

                                  SIMMONS MEDICAL CLINIC
                                           and
                                     MICHAEL SIMMONS,
                                        Appellants.


                                SYLLABUS BY THE COURT


1.
       K.S.A. 60-2313(a)(1) exempts from garnishment funds attributable to pension,
annuity, retirement, disability, death, or other benefits received pursuant to the statutes
specified in the subsection.


2.
       Funds attributable to private disability insurance benefits are not exempt from
garnishment under K.S.A. 60-2313(a)(1).


       Appeal from Crawford District Court; A. J. WACHTER, JR., judge. Opinion filed June 30, 2017.
Affirmed.


       Kyle M. Fleming, of The Fleming Law Firm, LLC, of Pittsburg, for appellants.


       Richard J. Raimond, of Goodell, Stratton, Edmonds & Palmer, LLP, of Topeka, for appellee.




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Before ARNOLD-BURGER, C.J., HILL, J., and HEBERT, S.J.

       HEBERT, J.: Michael Simmons appeals from the determination of the district court
that funds attributable to his private disability insurance benefits are not exempt from
garnishment under K.S.A. 60-2313(a)(1). Our review of the plain language of the statute
confirms the district court was correct, and we affirm the judgment.


Factual and Procedural Background


       In 2010, Leaf Funding Inc., (Leaf Funding) obtained a $120,324.59 default
judgment against Simmons in the United States District Court for the District of
Delaware. On August 12, 2010, Leaf Funding filed a notice of the foreign judgment in
Crawford County District Court, Case No. 2010MV36P.


       On March 25, 2016, Leaf Funding filed a motion to revive the judgment, which
was granted by the district court on May 11, 2016. On June 17, 2016, Leaf Funding filed
requests for garnishment on two banks in Girard, Kansas: Community National Bank
and Girard National Bank. On June 24, 2016, the district court issued the orders of
garnishment. Community National Bank answered the garnishment, stating it held
$12,133.92 of nonearnings money in accounts owned by Simmons in joint tenancy.
Girard National Bank answered that it held $3,021.23 in an account owned by Simmons.


       On July 12, 2016, Simmons filed an objection and request for hearing. He argued:
(1) He had never received notice of the underlying lawsuit in Delaware; (2) the funds
obtained through garnishment were exempt Social Security disability benefits; and (3)
one of the accounts that was garnished belonged wholly to his daughter.


       The district court held a hearing on Simmons' objection on July 29, 2016.
Simmons' attorney explained that there were four bank accounts at issue—one business

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account at Girard National Bank and three personal accounts at Community National
Bank. Simmons conceded that he had no legal basis for the business account to be
exempt from garnishment. He also clarified that the disability insurance proceeds that he
was claiming were exempt from garnishment were private disability insurance benefits
and not Social Security disability benefits. The three personal accounts held the following
amounts: $161.99; $11,469.75; and $502.18. Simmons argued that all of the money in
the first two accounts came from his private disability insurance policy, which he claimed
was exempt under K.S.A. 60-2313. The bank statements showed that the money was
from Northwestern Mutual. The third account, he argued, was also exempt because the
funds in it belonged to his daughter.


       Leaf Funding argued that the private disability benefits Simmons had received
were not exempt from garnishment under K.S.A. 60-2313. Leaf Funding also argued that
the account that Simmons claimed was owned by his daughter was actually owned by
both his daughter and Simmons as joint tenants, so there was a rebuttable presumption of
a 50/50 split between them.


       Simmons testified at the hearing that he was the sole owner of Simmons Medical
Clinic and that he received approximately $7,300 each month in private disability income
from Northwestern Mutual, which was deposited into the savings account. He then
transferred some of the funds into the checking account to use to pay for his personal
expenses. He also testified that some of the money in the checking account was money he
received from selling items on eBay and identified these transactions on his bank
statement.


       Simmons also testified that the only deposit ever made into the joint tenancy
account with his daughter was from money she received from a life insurance policy after
his father passed away, and that he was only a joint tenant on the account because his
daughter was a minor when she received the funds.

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       After the parties presented their evidence, the district court made a finding that the
Community National Bank account held jointly with Simmons' daughter was solely her
money and was not subject to garnishment. Simmons did not have a reason for exempting
the business account at Girard National Bank, so it was ordered to be paid. The district
court then allowed each party 10 days to file briefs on the issue of whether the funds in
the checking and savings accounts attributable to the disability policy should be exempt.


       The parties filed their briefs, and on August 19, 2016, the district court held that
Simmons' private disability insurance benefits were subject to garnishment under Kansas
law. The district court determined that K.S.A. 60-2313(a)(1) was not ambiguous and that
the legislature clearly intended to exempt only the benefits mentioned in the statutes
listed within the subsection.


Funds derived from private disability insurance benefits are not exempt from
garnishment under K.S.A. 60-2313(a)(1).

       Simmons argues the district court erred in finding the funds distributed from his
disability account were not exempt from seizure under K.S.A. 60-2313(a)(1).
Determining whether the statute exempts the funds in Simmons' bank accounts requires
statutory interpretation, which is a question of law over which this court has unlimited
review. See Decker & Mattison Co. v. Wilson, 273 Kan. 402, 404, 44 P.3d 341 (2002).
Simmons has the burden of proving that some or all of the funds contained in his bank
accounts are exempt from garnishment. See K.S.A. 2016 Supp. 60-735(c).


       K.S.A. 60-724(3) states: "No judgment shall be rendered in garnishment by reason
of the garnishee . . . holding moneys or property exempt by law, or the proceeds
therefrom." Exemptions are covered in Article 23 of the Kansas Code of Civil Procedure.
K.S.A. 60-2313(a)(1) provides:




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               "Except to the extent otherwise provided by law, every person residing in this
       state shall have exempt from seizure and sale upon any attachment, execution or other
       process issued from any court in this state:
               "(1) Any pension, annuity, retirement, disability, death or other benefit exempt
       from process pursuant to K.S.A. 12-111a, 12-5005, 13-1246a, 13-14,102, 13-14a10, 14-
       10a10, 20-2618, 72-1768, 72-5526, 74-4923, 74-4978g, 74-49,105 or 74-49,106, and
       amendments thereto."


       The Kansas Supreme Court held that funds coming from an exempt source that are
deposited into a savings account and then converted to a certificate of deposit (CD) are
still exempt if the funds are readily identifiable to the exempt award. Decker, 273 Kan.
402, Syl. ¶ 3. "[I]t is evident that money which has been converted into a CD retains the
quality of money such that an exemption which originally protected the money will
protect the certificate as well." 273 Kan. at 409.


       Neither party argues that the disability payments Simmons received were the type
mentioned in any of the statutes listed in this subsection, which include benefits available
to Kansas police and fire department employees, Kansas public utilities or municipalities
employees, judges, and court reporters as well as benefits under school supplemental
retirement programs or the State School Retirement System and the Kansas Public
Employees Retirement System. Several of these types of benefits also include benefits for
disability. See K.S.A. 20-2609 (providing disability benefits for Kansas judges and
exempt under K.S.A. 2016 Supp. 20-2618); K.S.A. 2016 Supp. 74-4927 (providing
disability benefits for Kansas public employees and exempt under K.S.A. 2016 Supp. 74-
4923); K.S.A. 2016 Supp. 74-4960 (providing disability benefits for Kansas police and
fire department employees and exempt under K.S.A. 74-4978g).


       The principles of statutory construction are well established:




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               "When a statute is plain and unambiguous, a court must give effect to its express
       language, rather than determine what the law should or should not be. Graham v. Dokter
       Trucking Group, 284 Kan. 547, 554, 161 P.3d 695 (2007). We determine legislative
       intent by first applying the meaning of the statute's text to the specific situation in
       controversy. See State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014) (first task in
       construing statute is to ascertain legislative intent through analysis of language employed,
       giving ordinary words their ordinary meanings). A court does not read into the statute
       words not readily found there. Whaley [v. Sharp], 301 Kan. [192, 196, 343 P.3d 63
       (2014)]; Graham, 284 Kan. at 554; see Casco v. Armour Swift-Eckrich, 283 Kan. 508,
       525, 154 P.3d 494 (2007). When the language is unclear or ambiguous, the court employs
       the canons of statutory construction, consults legislative history, or considers other
       background information to ascertain the statute's meaning. Whaley, 301 Kan. at 196."
       Hoesli v. Triplett, Inc., 303 Kan. 358, 362, 361 P.3d 504 (2015).


       Simmons argues that the legislature would not have included the word any before
the generic list of benefits if it had intended to exempt only the benefits in the listed
statutes at the end of the subsection. He maintains that the legislature's intent to include
all pension, annuity, retirement, disability, or death benefits as exempt is expressed
through its clear and basic language.


       Simmons admits that there are no Kansas cases deciding this issue. To support his
contention that private benefits have been exempted under K.S.A. 60-2313(a)(1), he cites
two unpublished opinions from the United States Bankruptcy Court for the District of
Kansas: In re Garcia, No. 10-21535, 2011 WL 482838, at *2 (Bankr. D. Kan. 2011)
(unpublished opinion), and In re Wagner, No. 08-40806-7, 2009 WL 1851100, at *3
(Bankr. D. Kan. 2009) (unpublished opinion).


       In In re Wagner, the United States Bankruptcy Court for the District of Kansas
held that a debtor's 401(k) retirement benefits were not exempt from being included in his
bankruptcy estate under K.S.A. 60-2308. In re Wagner, 2009 WL 1851100, at *3.
Although the debtor initially argued that the asset was exempt under K.S.A. 60-

                                                      6
2313(a)(1), in a later brief, the debtor relied on K.S.A. 60-2308. In re Wagner, 2009 WL
1851100, at *1 n.5. Moreover, although the bankruptcy court cited K.S.A. 60-2313(a)(1),
it never applied it. Instead, the bankruptcy court determined that unlike the language of
the statute exempting workers compensation benefits at issue in Decker, 273 Kan. at 404,
which exempts compensation paid through workers compensation, the statute that
exempts 401(k) retirement benefits, K.S.A. 60-2308, provides that "any money . . .
payable to a participant or beneficiary from, or any interest of any participant or
beneficiary in, a retirement plan . . . shall be exempt from any and all claims of creditors
of the beneficiary or participant." In re Wagner, 2009 WL 1851100, at *2-3. The court
determined that the language in K.S.A. 60-2308 only protects the retirement account
itself and not the money once it was paid out to the debtor. 2009 WL 1851100, at *3-4.


       In re Garcia is similar to In re Wagner in that the debtor in a bankruptcy action
argued that her private 401(k) retirement funds were exempt from inclusion in her
bankruptcy estate under K.S.A. 60-2308 and K.S.A. 60-2313(a)(1). However, again,
other than citing K.S.A. 60-2313(a)(1) as a statute under which the exemption was
claimed, the court never stated that the statute applied to this private retirement benefit.
Instead, the court specifically stated that the Kansas retirement exemption was K.S.A. 60-
2308(b). In re Garcia, 2011 WL 482838, at *1. And, as in Wagner, the court determined
that the retirement benefits that had already been paid to the debtor were not exempt. In
re Garcia, 2011 WL 482838, at *1-2.


       Simmons' reliance on these cases is misplaced—neither court applied K.S.A. 60-
2313(a)(1) after finding that benefits already paid were not exempt under K.S.A. 60-
2308. Simmons does not allege that the funds attributable to payments from his private
disability insurance are exempt under K.S.A. 2016 Supp. 60-2308, and Leaf Funding is
not seeking garnishment of the principal of the disability policy.




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       It is important to note that although the parties argue for different interpretations
of K.S.A. 60-2313(a)(1), neither claims that the statute is ambiguous. Leaf Funding
argues that reading the statute as Simmons would like it read would require that the first
five benefits listed in the statute be general benefits and that only the last option—"other
benefit"—be limited to the specific benefits named in the statutes listed in the remainder
of the subsection. We agree that "other benefit" cannot be read in such isolation from the
previously listed types of benefits because in addition to modifying "other," the word
"benefit" also modifies "pension, annuity, retirement, disability, [and] death." There is no
comma or other punctuation after the word "death" which would suggest otherwise.
Further, the legislature would not have needed to list the particular statutory benefits if,
by use of the introductory "Any," it had already intended that all pension, annuity,
retirement, disability, and death benefits, from whatever source, were exempt.


       A written instrument will not be found to be ambiguous unless two or more
meanings can reasonably be construed from the document. A court will not strain to find
an ambiguity where, in common sense, there is none. See Iron Mound v. Nueterra
Healthcare Management, 298 Kan. 412, 418, 420, 313 P.3d 808 (2013). Although Iron
Mound arose in the context of contractual interpretation, the principle is equally valid in
statutory interpretation. We would have to strain beyond common sense to accept
Simmons' proposed interpretation of the statute. K.S.A. 60-2313(a)(1) unambiguously
exempts from garnishment only funds derived from the types of benefits listed in the
statutes specifically set forth within it. Since Simmons' funds do not fall within any of
those categories, the district court was correct in overruling Simmons' objection to the
garnishment.


       Affirmed.




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