IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

UNITED STATES OF AMERICA, §

§

Plaintiff, §

§

VS. § NO. 4:05-CV-704-A

§

MARCUS CALHOUN MARSDEN, §

§

Defendant, §

§

ABILITY RESOURCES, INC., §

§

Garnishee. §

MEMORANDUM OPINION

and

ORDER

I.

Events that Led to the Need for This

Memorandum Opinion

This action was instituted by United States of America, as

plaintiff, to garnish wages, if any, owed by Ability Resources,

Inc., garnishee, ("Ability") to defendant, Marcus Calhoun

Marsden, ("Mr. Marsden") or his wife, Suzanne C. Marsden, ("Mrs.

Marsden"). For reasons discussed under this heading, the court

has been forced to spend an inordinate amount of time on what

should have been a rather plain-vanilla garnishment action. 

By an order signed January 10, 2006, the court summarized

difficulties encountered with this action to that point in time,

and suggested that surely the "interested parties [could meet]

and resolve whatever issues are in dispute, and thereby bring

this matter to a conclusion before it gets further out of hand." 

Jan. 10, 2006, Order at 4. By the January 10 order, the court

 

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After the January 17 hearing had been in progress for some

period of time, Cleveland announced to the court that if he "could

have a few minutes to talk to [his] clients, we might be able to

resolve this fairly quickly." Tr. of Jan. 17, 2006, hearing (draft)

at 23. After conferring with his clients and counsel for plaintiff,

Cleveland made the following representations to the court:

MR. CLEVELAND: Your Honor, we believe that

you've heard all the arguments and evidence that we really

had any question about, having resolved in your guidance,

and this matter has convinced us it would not be to our

benefit to proceed any further at this time.

THE COURT: Okay. And you're going to concede

that the government has the right to garnish her wages.

MR. CLEVELAND: That's correct, Your Honor.

THE COURT: And it would be 25 percent of her

disposable earnings.

MR. CLEVELAND: That's correct, Your Honor.

THE COURT: And the disposable earnings are her

(continued...)

2

required the parties to meet in the court's alternate jury room

on January 17 for the purpose of discussing an agreed settlement. 

The parties reported to the courtroom for a hearing about two

hours after the meeting started and announced in open court that

a settlement had not been reached. Present were attorneys for

plaintiff; Mr. and Mrs. Marsden; Daniel Cleveland ("Cleveland"),

an attorney representing the Marsdens; and Jesse Seawell

("Seawell"), an official of Ability with authority to speak and

agree on its behalf. The court was advised near the end of the

hearing that during the hearing an agreement had been reached

between plaintiff, the Marsdens, and Ability on matters in

dispute, and that all that remained was for plaintiff to present

to the court a form of judgment consistent with the agreement for

the court's signature.1

 

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(...continued)

gross wages less FICA deductions and withholding

deductions.

MR. CLEVELAND: That's correct. I mean, that's

our understanding of the law, Your Honor, as it's been

discussed today.

Id. at 26-27.

2

Copies of the letter, proposed order, and proposed judgment are

in the record as attachments to the order the court signed in this

action on January 25, 2006.

3

On January 24 the court received from counsel for plaintiff

a proposed order and a proposed final judgment, accompanied by a

letter from the attorney saying that "[d]uring the hearing, the

United States was unable to reach any agreement with regard to

this case with Mr. Cleveland, as representative for Mr. and Mrs.

Marsden."2 Thus, on January 24 the court found this case to be

basically in the same condition it was in when the court ordered

the parties to meet on January 17 in an attempt to resolve

disputed issues. 

The court had a telephone conference/hearing with counsel

for plaintiff and Cleveland on January 25 to the end of

understanding the areas of dispute then existing. As the court

understood things said by Cleveland at that time, his clients

were contending that the garnishment was not continuing in nature

as to Mrs. Marsden's earnings but if the court were to conclude

that it was the Marsdens would not disapprove of the proposed

final judgment counsel for plaintiff had submitted to the court

on January 24. That proposed judgment treated Mrs. Marsden's

earnings as property subject to garnishment for payment on the

 

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On page 4 of the memorandum, Mrs. Marsden, through Cleveland,

expresses the contention that "[t]he plain language of the

garnishment statute clearly contemplates that the wage garnishment

will be against the judgment debtor, and not the spouse of the

judgment debtor who was not involved in the civil or criminal matter

that led to the creation of the judgment debt to begin with." 

4

restitution judgment. The court ordered the parties to submit

legal memoranda on the issue of the continuing nature of the

garnishment.

On January 27 plaintiff filed her post-hearing brief, and

accompanying appendix. On January 31 Cleveland filed a

memorandum in Mrs. Marsden's name. It went beyond the issue of

whether the garnishment as to her wages is continuing in nature. 

As the court reads the memorandum, Mrs. Marsden now takes the

position that none of her wages is subject to garnishment for the

indebtedness owed by Mr. Marsden.3 

The morning of February 3, 2006, Cleveland filed a document

titled "Memorandum of Law of Defendant and Suzanne C. Marsden,"

along with an accompanying appendix, urging as a theory why Mrs.

Marsden's earnings should not be subject to garnishment that Mrs.

Marsden is not a "debtor" as that word is defined in 28 U.S.C.

§ 3002(4). The Marsdens cited Texas case law that a spouse is

not personally liable for the torts of the other spouse. Also,

they rely on the provisions of section 3.201 of the Texas Family

Code for the proposition that, generally speaking, a spouse is

not personally liable for the acts of the other spouse. They go

 

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In their February 3 filing, the Marsdens resurrected an

argument they made at the January 17 hearing based on 28 U.S.C.

§ 3013, which the court understood they had abandoned. The argument

is that the court should exercise some kind of discretion in favor of

the Marsdens based on the authority of § 3013. The court is not

persuaded that § 3013 gives the court the right to exercise the kind

of discretion urged by the Marsdens; and, even if broad discretion of

that kind were given to the court by § 3013, nothing has been

presented to the court to cause it to conclude that the discretion

should be exercised in favor of the Marsdens in this action. The

court sees no need to deal further with this argument, and declines

to do so.

5

However, the court has accepted, and relies on, certain

agreements the parties have reached as to relevant facts.

6

Title 18 U.S.C. § 3613 gives United States of America the right

to enforce collection of a judgment ordering restitution. 

7

Section 3205(a) of title 28 is a part of the Federal Debt

Collection Procedures Act, 28 U.S.C. §§ 3001-3308, which is a series

of statutory provisions defining the post-judgment remedies United

States of America has to enforce collection of judgments. 

5

on to argue that there is no exception in this case to that

general rule of non-liability.4

Because of the elusive and contradictory nature of the

contentions, representations, and agreements of the Marsdens,

acting through Cleveland, the court has concluded that the issues

in this case as between plaintiff, on the one hand, and the

Marsdens, on the other, must be resolved on the assumption that

there is no agreement between those parties as to any dispositive

legal issue in this case.5 Thus, this Memorandum Opinion.

II.

Procedural History

The application for writ of garnishment was filed by

plaintiff on November 7, 2005, pursuant to the authority of 18

U.S.C. § 36136 and 28 U.S.C. § 3205.7 Plaintiff requested

 

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The court judicially knows that the judgment in question, as

amended, was signed by the court in No. 4:98-CR-136-Y on January 4,

1999. It ordered Mr. Marsden to pay restitution for the benefit of

the victims of his criminally fraudulent conduct, the conviction and

sentence for which are reflected by that judgment.

6

issuance of a writ of garnishment upon the property of Mr.

Marsden, as a judgment debtor8 of plaintiff, and Mrs. Marsden, as

his community-property spouse. Ability was named as the

garnishee. Though unusually worded, the application discloses

that its goal was to gain issuance of a writ of garnishment

directed to Ability for the purpose of garnishing earnings in

which Mr. Marsden has a substantial non-exempt interest,

including the earnings of his wife.

The requested writ of garnishment was issued and served as

contemplated by 28 U.S.C. § 3205(c)(3). Notice as contemplated

by 28 U.S.C. § 3202 was issued and served on Mrs. and Mrs.

Marsden. On December 6, 2005, Mr. Marsden filed a document

titled "Claim for Exemption Form" in which he indicated that

certain items of property were exempt from the garnishment sought

by the government, none of which had any relevance to the writ of

garnishment issued in this case. On that same date Mr. Marsden

filed a copy of the statutory notice that had been served on him

on which he had made a notation that he was requesting a hearing

pursuant to 28 U.S.C. § 3202(d). The court did not schedule a

hearing because of the lack of relevance to this proceeding of

the exemptions Mr. Marsden claimed. On December 20, 2005,

plaintiff filed an objection to Mr. Marsden's claim for

 

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exemptions and his demand for hearing, pointing out that they

were not relevant to this garnishment action. 

On December 20 Mr. Marsden filed documents seeking

appointment of counsel and requesting authorization to proceed in

this action in forma pauperis. Those requests were denied by

order signed December 21. On December 23 the court signed an

order declaring that this garnishment action does not have any

effect on any of the items of property listed by Mr. Marsden on

the Claim for Exemption Form he filed on December 6, and that

there is no need for a hearing on that subject. The court also

noted that Ability apparently had failed timely to file an

answer, and ordered that plaintiff inform the court by a document

filed by January 6, 2006, of the action she planned to take to

bring this proceeding to a conclusion.

Plaintiff filed on December 30 a motion for entry of order

and final judgment of garnishment. Allegations made in that

motion indicated that Ability had filed two answers, stating in

one that it owed Mr. Marsden $100.00 for earnings as a contractor

for Ability, and in the other that Mrs. Marsden's biweekly

earnings from Ability are $1,592.31, less deductions for FICA and

federal income tax. At the time the court received the motion,

the court had not received any answer from Ability. On January

9, 2006, Ability filed two documents over the signature of

Seawell. Each was titled "Draft Answer of the Garnishee Attached

to Plaintiff's Instructions to the Garnishee on Submitting Answer

Under 28 U.S.C. § 3205(4) & (5) with Service of Issued of Writ of

 

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Garnishment." One said that Ability employed Mr. Marsden as a

contract laborer, doing lawn care seasonally, for $100.00. The

other, when read literally, said that Ability employed Mr.

Marsden, that Mr. Marsden earned $1,592.31 biweekly, that Ability

paid him $1,308.50 biweekly, after deducting federal income tax

of $162.00 and FICA tax of $121.81, and that the biweekly wage

payments would continue into the future. 

In late December 2005 and early January 2006 Mrs. Marsden,

acting pro se, filed three somewhat nonsensical documents. The

court has not taken action in response to any of those documents,

except to sign on December 28, 2005, an order striking and

unfiling the first one and to discuss the filings in the order

the court signed January 10, 2006.

At the hearing held January 17 the parties were in agreement

that the document filed over Seawell's signature on January 9

that made reference to biweekly earnings of $1,592.31 actually

had reference to earnings by Mrs. Marsden. The court was

informed at that hearing that Ability continued to make the

biweekly payments to Mrs. Marsden after receiving the writ of

garnishment, and had an understanding with her that if Ability

were to be required to make payment to plaintiff of amounts they

had already paid to her, Mrs. Marsden would reimburse Ability for

the total amount it was required to pay. There seemed to be an

understanding between plaintiff and Ability, through Seawell,

that, if the judgment of the court is that the writ of

garnishment attaches to Mrs. Marsden's wages, Ability would pay

 

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9

to plaintiff all amounts it should have withheld by virtue of the

writ of garnishment.

After receiving and reviewing the documents filed the

morning of February 3, 2006, by Cleveland on behalf of the

Marsdens, supra at 5, the court had a telephone

conference/hearing with counsel for plaintiff, Cleveland, and

Seawell on the line. The court was told by counsel for plaintiff

and Cleveland that no further hearing would be required and that

the matter could be decided on the basis of the record as it now

exists and facts to which the parties have agreed on the record. 

During the telephone conference/hearing plaintiff and the

Marsdens, through their respective counsel, agreed to the

following facts, which the court finds to be relevant to this

case: 

(1) The Marsdens are married to each other, and their

marriage occurred before Mr. Marsden engaged in the criminally

fraudulent conduct that resulted in his obligation to make the

restitution payments that are evidenced by the judgment in No.

4:98-CR-136-Y, which is the judgment to which the application for

writ of garnishment and the other garnishment papers in this

action refer.

(2) The original principal amount of the judgment of

restitution in No. 4:98-CR-136-Y was $535,009.67. When accrued

interest is added, and credits for payment made are considered,

the amount unpaid and owed on the judgment as of October 31,

2005, was $694,850.93. 

 

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(3) Mrs. Marsden's gross earnings as an employee of

Ability during the months of November and December 2005 and

January 2006 have been $1,592.31 biweekly, and the deductions

required by law (federal income tax and F.I.C.A. tax) from those

earnings biweekly total $283.81, resulting in disposable earnings

biweekly of $1,308.50.

(4) Since Ability was served with the writ of

garnishment in this action it has made biweekly earnings payments

to Mrs. Marsden on November 18, 2005, December 2, 2005, December

16, 2005, December 30, 2005, January 13, 2006, and January 27,

2006. In each instance, the payment was $1,308.50. The total of

the amounts that should have been withheld from those earnings

payments pursuant to this garnishment action is $1,635.63. 

Ability has agreed to pay that amount to plaintiff if the

garnishment is held by the court to be effective against Mrs.

Marsden's earnings. Mrs. Marsden has agreed to reimburse Ability

for that payment if Ability is required to make such a payment to

plaintiff. Defendants agree, through Cleveland, that the order

and judgment of the court in this action can direct Mrs. Marsden

to make such a reimbursement payment.

III.

The Effect of the Writ of Garnishment

Section 3205(a) of title 28 provides, in pertinent part, as

follows:

A court may issue a writ of garnishment against

property (including nonexempt disposable earnings) in

which the debtor has a substantial nonexempt interest

and which is in the possession, custody, or control of

 

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a person other than the debtor, in order to satisfy the

judgment against the debtor. Co-owned property shall

be subject to garnishment to the same extent as coowned property is subject to garnishment under the law

of the State in which such property is located. . . . 

A writ of garnishment issued under this subsection

shall be continuing and shall terminate only as

provided in subsection (c)(10).

The term "nonexempt disposable earnings" is explained by the

following definitions found in 28 U.S.C. §§ 3002(5), (6), and

(9):

(5) "Disposable earnings" means that part of

earnings remaining after all deductions required by law

have been withheld.

(6) "Earnings" means compensation paid or payable

for personal services, whether denominated as wages,

salary, commission, bonus, or otherwise, and includes

periodic payments pursuant to a pension or retirement

program.

. . . .

(9) "Nonexempt disposable earnings" means 25

percent of disposable earnings, subject to section 303

of the Consumer Credit Protection Act.

Under Texas law, earnings of a spouse during marriage are

the community (co-owned) property of both spouses. Tex. Fam.

Code § 3.002. All community property is subject to the tortious

liability of either spouse incurred during marriage. Id.

§ 3.202(d).

The foregoing statutory provisions lead to the conclusion

that Mrs. Marsden's personal earnings are subject to being

applied as payment on the judgment of restitution against Mr.

Marsden. The court is satisfied that the judgment requiring Mr.

Marsden to make restitution to the victims of his criminally

fraudulent conduct is tortious liability within the meaning of

 

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section 3.202(d) of the Texas Family Code. See United States v.

Bach, 172 F.3d 520, 523 (7th Cir. 1999). The Marsdens concede

that Mr. Marsden's tortious liability evidenced by the judgment

of restitution was incurred during the marriage of the Marsdens. 

The Marsdens miss the point when they argue that the

garnishment cannot extend to her earnings because under Texas law

Mrs. Marsden does not have personal liability for payment of the

judgment. Rather, the issue is whether her wages as community

property of the Marsdens (property co-owned by Mr. and Mrs.

Marsden) is subject to being applied through garnishment as

payment on the judgment. The statutes make quite clear that the

garnishment extends to the community (co-owned) property.

Section 3205(a) of title 28 authorizes the issuance of a

writ of garnishment against nonexempt disposable earnings in

which the debtor has a substantial nonexempt interest. Mr.

Marsden has a community property interest in his wife's earnings. 

Section 3205(a) says that a court may issue a writ of garnishment

against "property." The word "Property" is defined in the act to

include community property. 28 U.S.C. § 3002(12). Section

3010(a) is specific that the remedies available to plaintiff

under the Act "may be enforced against property which is co-owned

by a debtor and any other person . . . to the extent allowed by

the law of the State where the property is located." As

previously noted, Texas law authorizes resort to community

property (co-owned property) for the payment to tortious

liability of either spouse. Tex. Fam. Code § 3.202(d). Clearly,

 

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Section 3205(c)(10) reads as follows:

A garnishment under this chapter is terminated

only by--

(A) a court order quashing the writ of

garnishment;

(B) exhaustion of property in the possesion

[sic], custody, or control of the garnishee in

which the debtor has a substantial nonexempt

interest (including nonexempt disposable

earnings), unless the garnishee reinstates or

reemploys the judgment debtor within 90 days after

(continued...)

13

Mr. Marsden has a substantial nonexempt interest in the community

property earnings of Mrs. Marsden, an interest that falls

squarely within the first sentence of § 3205(a). 

The only legal issue remaining to be discussed is whether

the garnishment is of a continuing nature. In the memorandum

Cleveland filed for Mrs. Marsden on January 31, the statement was

made that "[d]efendant Marcus C. Marsden does not dispute that

the garnishment action under 28 U.S.C. § 3205 is a continuing

obligation against his wages." Jan. 31, 2006, Mem. at 3. The

Marsdens are quire correct to concede that point. Provisions of

the Federal Debt Collection Procedures Act of 1990 ("Act"), 28

U.S.C. §§ 3001-3308, clearly express the congressional intent

that a garnishment under the Act is continuing in nature. As

noted above, the part of the Act authorizing the issuance of a

writ of garnishment against nonexempt disposable earnings

expressly states that "[a] writ of garnishment issued under this

subsection shall be continuing and shall terminate only as

provided in subsection (c)(10)."9 28 U.S.C. § 3205(a). A

 

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(...continued)

the judgment debtor's dismissal or resignation; or

(C) satisfaction of the debt with respect to

which the writ is issued.

(footnote omitted). 

14

complimentary provision is found in the definition of

"Garnishee," which reads as follows:

"Garnishee" means a person (other than the debtor)

who has, or is reasonably thought to have, possession,

custody, or control of any property in which the debtor

has a substantial nonexempt interest, including any

obligation due the debtor or to become due the debtor,

and against whom a garnishment under section 3104 or

3205 is issued by a court.

28 U.S.C. § 3002(7) (emphasis added). Also persuasive is the

language in § 3205(c)(4)(D) that the garnishee shall state in its

written answer, inter alia, "the amount of the debt the garnishee

anticipates owing to the judgment debtor in the future and

whether the period for payment will be weekly or another

specified period." The language of § 3205(c)(10)(B), though not

as clearly worded as might be desired, conveys the message that

Congress intended that earnings in which the debtor has a

substantial nonexempt interest will continue to be subject to the

writ of garnishment so long as there is not more than a ninetyday interruption in employment. 

The wording of the pertinent provisions of the Act make

clear that the post-judgment garnishment authorized by the Act

can extend to wages, and that a wage garnishment is continuing,

subject only to the termination provisions of § 3205(c)(10). 

Mrs. Marsden's community property earnings are no different from

 

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Mr. Marsden's community property earnings when it comes to a

garnishment to satisfy tortious liability incurred by one of the

spouses during their marriage.

Having concluded that the garnishment extends to Mrs.

Marsden's earnings, and that it is continuing in nature, the

court is so ordering. 

IV.

Additional Findings and Conclusions

Supplementing the findings and conclusions expressed in

other parts of this Memorandum Opinion, the court finds and

concludes as follows:

(1) Ability currently has custody, control or

possession of earnings in which defendant Mr. Marsden and his

community property spouse, Mrs. Marsden, each has a substantial

nonexempt interest.

(2) Plaintiff is entitled to collect through the

judgment for restitution rendered in criminal case no. 4:98-CR136-Y at least $694,850.93, which is the amount owed by way of

principal and interest as of October 31, 2005, on the judgment,

which was in the original amount of $535,009.67.

(3) The earnings of Mrs. Marsden are community

property and are subject to continuing garnishment. The amount

of Mrs. Marden's earnings that are subject to garnishment each

pay period is 25 percent of $1,308.50, or $327.13. When in the

future Mrs. Marsden’s disposable earnings differ from the amount

stated by Ability in its answer, those disposable earnings shall

 

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be the basis for calculating payments by Ability to plaintiff. 

Each pay period, Ability should withhold and retain 25 percent of

the disposable earnings (gross earnings minus F.I.C.A. and

federal income tax) of Mrs. Marsden, and make payment to

plaintiff, through the Clerk, on the 1st and 15th day of each

month. 

(4) Disposable earnings are "that part of earnings

remaining after all deductions required by law have been

withheld." See 28 U.S.C. § 3002(5). Section 1673 of title 15

and § 3002(9) of title 28 set a maximum reach for a garnishment

at 25 percent of disposable earnings. 

(5) The current gross monthly earnings of Mr. Marsden

from Ability for contract labor are $100.00, which varies

seasonally. No deductions are currently withheld by Ability from

those earnings. When the writ of garnishment was served, Ability

owed Mr. Marsden $100.00. 

(6) Ability does not have custody, control, or

possession of any property in which Mr. Marsden has a substantial

nonexempt interest other than that mentioned above. 

V.

Order

Consistent with the foregoing,

The court ORDERS Ability to pay $1,635.63 to plaintiff by

February 17, 2006, in satisfaction of Ability's obligation to

plaintiff related to earnings payments Ability made to Mrs.

Marsden after Ability was served with the writ of garnishment.

 

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The court further ORDERS Mrs. Marsden to reimburse Ability

by February 24, 2006, for the $1,635.63 payment Ability is to

make to plaintiff pursuant to the foregoing part of this order.

The court further ORDERS that from this point forward

Ability pay to plaintiff biweekly, on the 1st and 15th days of

each month, 25 percent of all earnings of Mrs. Marsden, after

deductions for federal income tax and F.I.C.A.

The court further ORDERS that this order shall continue in

effect as to Mrs. Marsden's earnings from Ability unless and

until terminated in a manner contemplated by 28 U.S.C.

§ 3205(c)(1).

The court further ORDERS that Ability pay to plaintiff 25

percent of the $100.00 ($25.00) Ability owed Mr. Marsden when the

writ of garnishment was served.

The court further ORDERS that the payments to be made by

plaintiff pursuant to this order are to be applied by plaintiff

upon the judgment rendered in criminal case No. 4:98-CR-136-Y in

the original amount of $535,009.67.

The court further ORDERS that all payments to be made by

Ability pursuant to this order be paid by certified check or

money order payable to "United States of America" and bearing

both this cause number (4:05-CV-704-A) and the criminal case

number (4:98-CR-136-Y), and be delivered to the clerk of the

United States District Court for the Northern District of Texas,

501 W. 10th Street, Room 310, Fort Worth, Texas 76102-3672.

 

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The court further ORDERS that, except as to the payments

required to be made by this order and except as to the future

earnings of Mrs. Marsden, the writ of garnishment served in this

action on Ability be, and is hereby, terminated.

The court further ORDERS that Ability be, and is hereby,

relieved of any liability to Mr. or Mrs. Marsden as to any

obligation it otherwise would have to either of them as to any of

the payments it makes pursuant to this order.

The court further ORDERS that the clerk of this court be,

and is hereby, directed to mail copies of this order and of the

final judgment in this garnishment action to the following:

Megan J. Fahey

Assistant United States Attorney

Burnett Plaza Suite 1700

801 Cherry Street Unit 4

Fort Worth, Texas 76102-6882

Jesse Q. Seawell IV, Registered Agent

Ability Resources Inc.

6040 Camp Bowie Blvd., Suite 31

Fort Worth, TX 76116-5602

Marcus Calhoun Marsden

501 McFarland Ranch Road

Aledo, TX 76008

Suzanne C. Marsden

501 McFarland Ranch Road

Aledo, TX 76008

SIGNED February 6 , 2006.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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