Avilla v. Avilla

BARNARD, P. J.

This is an appeal from an order denying a claim of exemption by a maritime fisherman.

A decree of divorce was entered in this action in favor of the plaintiff, giving her custody of a minor child. In accordance with an agreement of the parties, incorporated in that decree, the plaintiff was further awarded $150 per month for the support of herself and the child. The defendant having become delinquent in these payments to the amount of

[211]

$2,639.23, and the matter having been properly presented, the court ordered an execution to issue in the amount of the delinquency.

The defendant was employed on a fishing vessel engaged in commercial fishing on the high seas. His earnings consisted of a proportionate share of the proceeds of the ‘ ‘ catch. ’ ’ The execution thns issued was served upon the captain of this ' fishing vessel, who responded that he was indebted to the defendant in the amount of $2,464.72. The defendant filed a notice and an affidavit claiming exemption under the provisions of section 601, title 46 U.S.C.A., in that he was earning his living by fishing on the high seas, and also claiming exemption under the provisions of sections 690.10 and 690.11 of the Code of Civil Procedure. Thereafter, the defendant moved the court to release the money tied up by the service of this execution, on the ground of such an exemption. After a hearing, the court entered ap, order releasing $300 to the defendant, and denying his motion as to all amounts over that sum. Prom this order the defendant has taken this appeal.

The appellant contends that his earnings as a maritime fisherman constitute wages as that term is used in section 601 of title 46, U.S.C.A., and that the levying of the execution here in question does not constitute an “order by any court” within the meaning of the exception provided in the last sentence of section 601. That sentence reads:

“Provided,

That nothing contained in this (or certain other sections) shall interfere with the order by any court regarding the payment by any seaman of any part of his wages for the support and maintenance of his wife and minor children.”