IN RE: the MARRIAGE OF Eileen A. and William D. CARTER (1978)

In this appeal we are called upon to determine whether railroad retirement benefits being paid to a disabled railroad worker may be levied upon to satisfy child support obligations which were specified in a judgment of marital dissolution.

The marriage of William D. and Eileen A. Carter was ended by a judgment which imposed on husband an obligation to pay to wife $125 per month per child for the support of the parties' two minor children. Shortly thereafter, husband was accidentally injured; he has been totally disabled, and medical judgment is that the disability will be permanent. Wife obtained a writ of execution upon a showing that delinquencies in child support had accumulated in the amount of $9,810.40. Levies were repeatedly made upon monthly benefits in the amount of $408 which husband had been receiving pursuant to the Railroad Retirement Act of 1974 (45 U.S.C. s 231 et seq.)

Husband moved for an order terminating the support obligation “and to terminate garnishment.” The motion was supported by evidence that husband was subsisting on the following monthly budget:

The deficit was being made up by small contributions received from relatives. Husband's assets have all been consumed by medical expenses. Because he is totally immobilized by his injury, husband has been located near the “Center for Independent Living” in Berkeley; he is conveniently located in relation to medical care, and the programs of the Center provide him with emotional and other support which helps him to bear his quadriplegic disability. There was evidence that if the garnishments of his railroad retirement benefits continued he would be forced to move “to some other area which is not adjacent to this rehabilitation center.”

Counsel for wife stated at the hearing on the motion that there was no opposition to husband's request to reduce support to the sum of one dollar. The issue presented to the court was whether further garnishments would be permitted pursuant to the writ of execution to recover arrearages of support which had already accrued.

The court reduced child support to one dollar per year per child and recalled the writ of execution. The appeal challenges the recall of the execution.

The Railroad Retirement Act of 1974 (superseding the Railroad Retirement Act of 1937) absolutely exempted from attachment “or other legal process” benefits paid by the Railroad Retirement Board. (45 U.S.C. s 231m). But that exemption was later removed as to “legal process brought for the enforcement . . . of . . . legal obligations to provide child support or make alimony payments.” (42 U.S.C. s 659.)

The federal statutes make no provision for dealing with claims of exemption in the present situation; without elaboration section 659 subjects “ moneys (the entitlement to which is based upon remuneration for employment)” to garnishment for alimony and child support “in like manner and to the same extent as if the United States . . . were a private person, . . .” This leaves it to state law to establish procedures to determine claims of exemption (e. g., Code Civ.Proc., s 690.6; see Rankins v. Rankins (1942) 52 Cal.App.2d 231, 126 P.2d 125) or to create blanket exemptions for some classes of income. But by subjecting benefits such as railroad retirement annuities to process only “to the same extent as if the United States . . . were a private person,” Congress manifested an intention to secure to affected federal recipients the advantage of any protection which state law may accord to workers or retired persons who draw benefits from private employers. The California Legislature has created an exemption, to be effective if claimed by the debtor, (Code Civ.Proc., s 690, subd. (a)) protecting from execution all benefits (including specifically any “disability payment”) receivable from “ any private retirement plan” (Code Civ.Proc., s 690.18, subd. (c)). Only money held in tax-deferred retirement plans or accounts pursuant to 29 United States Code section 1001 et seq. was, in this enactment, made subject to levy for court-ordered child support payments.

We conclude that an annuitant receiving benefits from the Railroad Retirement Board is entitled to claim exemption from execution upon his benefits even though the levy is pursuant to a judgment for alimony or child support. The motion to “terminate garnishment” was such a claim of exemption. The court acted correctly, upon the showing that husband had no nonexempt assets, when it quashed the writ of execution.

Affirmed.

CHRISTIAN, Associate Justice.

CALDECOTT, P. J., and COOK (under assignment by the Chairperson of the Judicial Council), J., concur.