MILLER v. MILLER (1967)

Petitioner originally filed a petition for a writ of prohibition to restrain the Superior Court for Los Angeles County from making an order requiring the payment of certain sums from petitioner's pension fund on account of alimony and child support to petitioner's former wife.   We issued an alternative writ.   It appearing at the argument that the proposed order had been signed and filed, it was ordered, pursuant to stipulation of counsel, that the petition could be treated by the court as a petition for a writ of mandate to require the respondent court to vacate the order.

This proceeding arises out of an action for divorce filed in June 1961 by Virginia Miller against the defendant, petitioner here.   Defendant defaulted and in November 1961 an interlocutory decree was entered awarding custody of the minor child of the parties to the plaintiff and providing that defendant should make certain payments each month to plaintiff for her support and maintenance and for the support of the minor child.   A final judgment was entered in February 1963.   As modified in July 1965 the judgment now provides that defendant shall pay plaintiff $300 per month as alimony and $150 per month for the support of the child.

On April 24, 1967, following a hearing on an order to show cause and a showing that defendant was in arrears in his payments “in excess of $3500,” the court made the order here under review.   At the time the order was made defendant had retired as chief engineer of the fire department of Los Angeles and was receiving a pension of $1,352.90 per month from the pension fund established by the city charter of Los Angeles.   So far as pertinent here the order reads:  “1. Defendant, WILLIAM L. MILLER and respondent M. LEWIS THOMPSON, individually and in his capacity as Manager and Secretary of the Department of Pensions, City of Los Angeles and on behalf thereof, their agents, servants, employees and attorneys, and each of them, are restrained absolutely from withdrawing any sums out of the Pension Fund named as a respondent in this proceeding, on behalf of or owing to defendant WILLIAM L. MILLER, or paying any sum therefrom to or on behalf of WILLIAM L. MILLER, exact [sic] as provided in this order or in any subsequent order of this Court.   2. Said M. LEWIS THOMPSON is directed to remit from said pension fund directly to plaintiff on account of alimony the sum of $300, and for support of the parties' minor child $150 (total $450) and to remit said installments at the rate of $450 on the first of each month beginning May 1, 1967.   Balance of monies due to said WILLIAM L.MILLER from said pension fund, pending further order of the Court, shall be remitted directly to him.   Said payment shall be mailed to plaintiff at the following address:  VIRGINIA ANN MILLER, c/o MEDOFF & HECHT, Attorneys at Law, 17315 Sunset Boulevard, Pacific Palisades, California 90272.”

Defendant contends that the order of the trial court is in excess of its jurisdiction in that the pension payable to him is not only exempt from attachment or execution, but is also free from any other interference by any judicial procedure including injunctive relief, which has the force and effect of an attachment or execution.   What little relevant case law there is persuades us that we must agree with defendant.

 Plaintiff concedes that all money received by petitioner from the city as a pension, as well as all contributions by petitioner “for retirement or pension purposes,” are exempt from attachment or execution.  (Code Civ.Proc., §§ 690.22, 690.23.)   Admittedly, “[t]here is no exception in the exemption laws which could authorize the satisfaction of any alimony judgment out of exempt property belonging to the husband and it is not the province of the courts to read such an exemption into the law, in the absence of waiver of the exemption by the husband.”  (In re Smallbone, 16 Cal.2d 532, 534, 106 P.2d 873, 131 A.L.R. 222, as quoted in Howard v. Howard, 166 Cal.App.2d 386, 388, 333 P.2d 417.)

In Howard v. Howard, supra, the court affirmed the orders of the trial court quashing a writ and levy of execution on the disability payments being made to a captain in the fire department of Los Angeles who had been taken off the active list because of disability injury.  (Conaway v. Conaway, 218 Cal.App.2d 427, 32 Cal.Rptr. 890, was an appeal from an order denying the motion of the divorce wife to appoint a receiver (in aid of execution under Code Civ.Proc., § 564, subd. 4) to receive all retirement checks received by her former husband on account of his air force retirement pay and apply them to a judgment for accrued alimony.   The court affirmed the judgment on the authority of Howard v. Howard, supra.¹

 It must also be remembered that defendant's right to his pension is contractual in nature and is therefore not subject to limitation in derogation of that right.   Defendant is now being paid a pension by virtue of section 181 of the charter of Los Angeles from a fund administered by the Board of Pension Commissioners pursuant to section 180 of the charter.   Section 181 of the charter provides that when a member of the fire department has been retired at his request ‘'such member shall thereafter, during his lifetime, be paid in equal monthly installments a pension.”   The file of the superior court in this action shows that by written agreement in October 1961 the plaintiff assigned the community interest in defendant's pension rights to defendant as his sole and separate property and expressly waived any and all her rights therein.

 “It has been clearly held that the pension provisions of the [Los Angeles] city charter are an integral portion of the contemplated compensation set forth in the contract of employment between the city and a member of the police department, and are an indispensable part of that contract, and that the right to a pension becomes a vested one upon acceptance of employment by an applicant.  O'Dea v. Cook, 176 Cal. 659, 169 P. 366;  Aitken v. Roche, 48 Cal.App. 753, 192 P. 464;  French v. Cook, 173 Cal. 126, 160 P. 411;  article 17, § 183, Charter of the City of Los Angeles.”  (Dryden v. Board of Pension Commrs., 6 Cal.2d 575, 578–579, 59 P.2d 104.)   It is equally clear that “The city need perform only in accordance with the contract as the terms thereof are contained pursuant to the charter provisions.”  (Benson v. City of Los Angeles, 60 Cal.2d 355, 360, 33 Cal.Rptr. 257, 259, 384 P.2d 649, 651.)

 Sections 690.22 and 690.23 expressly exempt from execution or attachment defendant's retirement pension and the fund from which it is paid, whether the money involved is in his possession, actually or constructively, or is held, controlled, or in the process of distribution by the City of Los Angeles.   It is clear that in enacting those sections the Legislature intended that there should be no exceptions to the exemption and that the retired employee shall be paid his pension in full as provided in the charter without let or hindrance by the court.   Just as the pension as well as all money held by the city for the purpose of paying the pension is exempt from attachment or execution by virtue of sections 690.22 and 690.23 of the Code of Civil Procedure, so also are they exempt from any order of the court purportedly in aid of execution.   In adopting these sections the Legislature made no exceptions and the courts can make none without rewriting the statute.  (Howard v. Howard, supra, 166 Cal.App.2d 386.)   As the court said many years ago in Tynan v. Walker, 35 Cal. 634, 639, “How much more in keeping with the legitimate exercise of judicial functions are those cases where it has been held that the Courts can create no exceptions where the Legislature has made none.”

The order here under review not only rewrites defendant's contract for the benefit of plaintiff as a judgment creditor;  it also enjoins defendant from exercising his rights under that contract and enjoins the manager and secretary of the department of pensions from making any payments from the pension fund except as provided in that order or in any subsequent order of the court.   To that extent it is as much an order in aid of execution as an order appointing a receiver would be (See Conaway v. Conaway, supra, 218 Cal.App.2d 427, 32 Cal.Rptr. 890), and is void.

 Plaintiff contends that a writ of prohibition should not issue because defendant has an adequate remedy by appeal and that this remedy would protect all the parties, in that a bond would be required and supersedeas would be available to prevent hardship during the pendency of the appeal.²  In the circumstances of this case, even though we could say that defendant's remedy by appeal is adequate, which is at least debatable, it is certainly not speedy.

Let a writ of mandate issue requiring the Superior Court for Los Angeles County to vacate the paragraphs numbered 1 and 2 of its order of April 24, 1967.

FOOTNOTES

FOOTNOTE.  

1.  Both in Howard v. Howard, 166 Cal.App.2d 386, 333 P.2d 417 and Conaway v. Conaway, 218 Cal.App.2d 427, 32 Cal.Rptr. 90, the court distinguished the status of alimony and child support claims under the earnings exemption provision of Code of Civil Procedure, section 690.11.   That section said the court in Howard (166 Cal.App.2d p. 389, 333 P.2d 417) has expressed provisions for exceptions to its coverage, while the pension sections “make no provision for any exception whatsoever.   Furthermore, one purpose of the earnings exemption, as expressly declared by the legislature in the statute, is to provide for the family from such earnings.   The courts have given ‘family’ a broad interpretation so as to include a divorced wife and minor children of that marriage.  (See Yager v. Yager, 7 Cal.2d 213, 220, 60 P.2d 422, 106 A.L.R. 664.)   Therefore, to hold the husband's earnings exempt from such a claim [under section690.11] would defeat the announced purpose of such exemption.   The language of sections 690.22 and 690.23 is not open to such interpretation.”

2.   The file of the superior court shows that defendant filed his notice of appeal on May 23, 1967, from the order of April 24, and from the minute order of April 13 on which the latter order is based.

McCOY, Associate Justice pro tem.* FN* by assignment of the chairman of the Judicial Council.

COBEY, Acting P.J., and MOSS, J., concur.