Ogle v. Heim

• Decision Date: 10 July 1968
• Court: California Supreme Court
• Parties: , 442 P.2d 659 Suzanne G. OGLE, Plaintiff and Appellant, v. V. A. HEIM, as County Auditor-Controller, etc., Defendant and Respondent; Joel E. OGLE, Real Party in Interest and Respondent. L.A. 29510.

Page 579

69 Cal.Rptr. 579

69 Cal.2d 7, 442 P.2d 659

Suzanne G. OGLE, Plaintiff and Appellant, v. V. A. HEIM, as County Auditor-Controller, etc., Defendant and Respondent Joel E. OGLE, Real Party in Interest and Respondent.

L.A. 29510.

Supreme Court of California In Bank.

July 10, 1968.

Rehearing Denied Aug. 8, 1968.

Eric A. Rose, Long Beach, for plaintiff and appellant.

Adrian Kuyper, County Counsel, and James S. Okazaki, Deputy County Counsel, for defendant and respondent.

No appearance for real party in interest and respondent.

PETERS, Justice.

This is an appeal by the plaintiff, Suzanne G. Ogle, from a judgment of the Superior Court of Orange County denying a writ of mandate to compel the Auditor-Controller of Orange County to honor the execution of a judgment for child support from retirement benefits of the judgment debtor. We have concluded that the judgment must be affirmed.

Suzanne Ogle divorced Joel E. Ogle in July 1963 and was awarded custody of their two minor children. Joel was ordered to pay the sum of $150 per month for each child's support, that is, a total sum of $300 monthly. Joel is a retired member of the Orange County Employees' Retirement System receiving a retirement allowance of $222--225 monthly. In September 1963 Joel became physically disabled and has since been unable to work.

Suzanne caused an abstract of judgment and affidavit to be filed pursuant to the provisions of section 710 of the Code of Civil Procedure for the purpose of executing on Joel's retirement allowance, alleging that he was delinquent in child support payments to the extent of $1,315.43. The defendant auditor-controller refused to pay any portion of the retirement benefits into court on the ground that they were exempt from execution. Suzanne sought mandate, and Joel filed a claim of exemption.

Pensions of public employees are exempted by statute from the claims of their creditors. Section 690.23 of the Code of Civil Procedure provides that 'All money held, controlled or in process of distribution by the State * * * or other political subdivision * * * derived from the contributions by the State * * * or other political subdivision * * * or by any officer or employee thereof for retirement or pension purposes * * * Are exempt from attachment or execution.' (Emphasis added.) Section 690.22, the companion to section 690.23, extends exemption to payments after receipt by a resident pensioner. In addition, Government Code, section 31452 provides that pensions of retired employees Of a county 'are not subject to execution, garnishment, attachment, Or any other process of court whatsoever, and are unassignable * * *.' (Emphasis added.)

Numerous other pensions to retired employees of particular governmental entities are also insulated by special legislation. ¹ Not one of the pension exemption statutes contains any suggestion that dependents are to be treated differently from other creditors. However, on the basis of the frequently repeated formula that the purpose of exemption statutes is to save debtors and their families from want by reason of misfortune or improvidence (e.g., Estate of Crosby, 2 Cal.2d 470, 473, 41 P.2d 928; Bailey v. Superior Court etc., 215 Cal. 548, 554, 11 P.2d 865; Holmes v. Marshall, 145 Cal. 777, 778--779, 79 P. 534), plaintiff argues that no exemption statute should bar a claim for child support. More specifically, she urges that the purposes of the statutes is to allow protection to the family as well as to the debtor and that the debtor should not be allowed to use the statutes to protect himself against his family.

Even if this analysis of statutory purpose were precise, it would not be helpful. 'The general rule is that a court is not authorized in the construction of a statute, to create exceptions not specifically made. If the statute announces a general rule and makes no exception thereto, the courts can make none.' (Stockton Theatres, Inc. v. Palermo, 47 Cal.2d 469, 476, 304 P.2d 7, 10; Vallerga v. Dept. of Alcoholic Bev. Control, 53 Cal.2d 313, 318, 1 Cal.Rptr. 494, 347 P.2d 909; Wisdom v. Eagle Star Ins. Co., 211 Cal.App.2d 602, 605, 27 Cal.Rptr. 599; People v. Pacific Guano Co., 55 Cal.App.2d 845, 848, 132 P.2d 254; see 2 Sutherland, Statutory Construction (1943) § 4701 et seq., p. 333 et seq.) The application of the general rule to the pension exemption was recognized in In re Smallbone, 16 Cal.2d 532, 534, 106 P.2d 873, where this court said: 'There is no exception in the exemption laws which would authorize the satisfaction of an alimony judgment out of exempt property belonging to the husband and it is not the province of the courts to read such an exception into the law, * * *.' This case held that although a husband cannot be forced to satisfy his support obligation from exempt pension moneys, he can be held in contempt where the pension moneys evidence an ability to pay. Smallbone was followed in Howard v. Howard, 166 Cal.App.2d 386, 333 P.2d 417, where plaintiff sought to satisfy a child support order by garnishing her former husband's disability retirement payments from the Los Angeles Fire Department. The court observed that Code of Civil Procedure, section 690 provides that 'The property mentioned in Sections 690.1 to 690.25, inclusive, this code, is Exempt from execution or attachment, Except as therein otherwise specially provided, * * *.' (Emphasis added.) No exception to the pension exemption was found, and the court concluded that the pension was exempt from levy and that plaintiff should enforce her claim by other remedies. In Conaway v. Conaway, 218 Cal.App.2d 427, 429, 32 Cal.Rptr. 890, plaintiff appealed from an order denying appointment of a receiver to receive her husband's Air Force retirement checks and apply them to a judgment for accrued alimony. The court held the retirement checks exempt under section 690.22 and affirmed the judgment, but added: 'Exemption from execution does not equate with a refusal to support from funds available, though exempt. Immunity does not necessarily imply impunity.'

California exemption statutes have not, as a class, been construed to contain an exception for dependents. ² The Legislature has repeatedly enacted exemption statutes which make no provision for the special circumstances which pertain upon dissolution of a family; some legislation directly indicates that no special treatment is desired. For example, in its 1959 addition of section 674.5 to the Code of Civil Procedure, the Legislature provided that a judgment for alimony or child support, when recorded, 'shall from such recording become a lien upon all real property of the judgment debtor, Not exempt from execution, * * *' (Emphasis added.) The italicized portion cautiously assures that dependents shall have the same rights in exempt property as other judgment creditors. (See Code Civ.Proc. § 674.)

The only exemption under which dependents have been accorded special treatment is section 690.11 of the Code of Civil Procedure. Section 690.11 renders one-half of a debtor's wages earned within the prior 30 days exempt, and allows total exemption 'if necessary for the Use of the debtor's family.' (Emphasis added.) Claims of dependents are not barred by the exemption of section 690.11. (Bruton v. Tearle, 7 Cal.2d 48, 53, 59 P.2d 953; McIntosh v. McIntosh, 209 Cal.App.2d 374, 26 Cal.Rptr. 28; Henry v. Henry, 182 Cal.App.2d 707, 6 Cal.Rptr. 418; Rankins v. Rankins, 52 Cal.App.2d 231, 126 P.2d 125.) ³ The language of section 690.11 invited the creation of an exception by expressly referencing the needs of the debtor's family as a criterion for exemption. By contrast, the pension exemption statutes contain no similar criterion and refute any such exception. The peculiar development of the wage exemption is therefore inapposite, despite certain parallels between wages and pensions.

Plaintiff offers cases from other jurisdictions which allow dependents to reach pensions as representative of what she claims is the majority and better rule. We have carefully examined these cases; they are not impressive. Only three jurisdictions--New York (e.g., Hodson v. New York City Employees' R. System (1935) 243 App.Div. 480, 278 N.Y.S. 16; Legler v. Legler (1935) 244 App.Div. 55, 278 N.Y.S. 804; Monck v. Monck (1918) 184 App.Div. 656, 172 N.Y.S. 401; Zwingmann v. Zwingmann (1912) 150 App.Div. 358, 134 N.Y.S. 1077; Albert v. Albert (Sup.Ct.1960) 199 N.Y.S.2d 766), New Jersey (Fischer v. Fischer (1953) 13 N.J. 162 98 A.2d 568), and Wisconsin (Courtney v. Courtney (1947) 251 Wis. 443, 29 N.W.2d 759; Saunders v. Saunders (1843) 243 Wis. 94, 9 N.W.2d 629)--have held that state pension exemption statutes are inapplicable to a claim for alimony or child support where the state statute seems absolute on its face and contains no language indicating an exception for dependents. A fourth jurisdiction, Michigan, has held that a municipal exemption ordinance could not bar dependents. (McDonald v. McDonald (1958) 351 Mich. 568, 88 N.W.2d 398.) ⁴

These cases are of little aid because they would find exceptions where none exist. Moreover, we are not persuaded that the blanket exceptions which they effect would be warranted by the public policy of this state. New York has allowed dependents to prevail against public and private pensions in cases involving separation, abandonment, or divorce, and in cases seeking current pension payments, the pension fund from which the payments are disbursed, or an employee's future interest in the fund. (E.g., La Hondere v. La Hondere (1939) 256 App.Div. 942, 9 N.Y.S.2d 918; Fox v. Fox (1950) 276 App.Div. 859, 93 N.Y.S.2d 620; Jackson v. Jackson (1948) 194 Misc. 134, 86 N.Y.S.2d 516; Anonymous v. Anonymous (1963) 41 Misc.2d 597, 246 N.Y.S.2d 93; cases cited, supra.) The decisions go far beyond the simple holding that dependents may garner the pension payments which plaintiff seeks here, and such great liberality would appear to be unwise....