In Re Smallbone

California Supreme Court Nov 12, 1940 No. Crim. 4316Published

Before: Moore

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Holding. The court held that a husband may be held in contempt for failing to pay court-ordered alimony when he has access to accrued pension funds, as the exemption of such funds from execution does not relieve him of his obligation to support his former wife.

Issues

Whether a husband can be held in contempt for failing to pay alimony when his only available funds are derived from an exempt pension.
Whether pension exemption laws protect a debtor from the obligation to pay court-ordered support.

Disposition. remanded to custody

Quotations verified verbatim against the opinion

“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”

“the exemption of pension moneys from execution and other process may not be construed to relieve a husband of his obligation to pay support money.”

MOORE, J.,

pro

tem.

By this proceeding in

habeas corpus

the petitioner seeks his discharge from custody under a judgment committing him for his failure and refusal to pay support money due to his former wife under a final decree of divorce entered on January 14, 1938.

Petitioner is a retired employee of the city and county of San Francisco, wherein the decree of divorce and the adjudication in contempt were had. As such retired employee he is entitled to a monthly pension of $100. Several of petitioner’s pension installments have accumulated with the pension board, due, so petitioner asserts, to certain legal proceedings taken against him by his former wife. ■ It appears, however, that petitioner has refused to stipulate, as requested by the former wife, to the release of sufficient of the pension money to permit of his compliance with the order of court directing payment of the support money to her. Under such circumstances, the trial court found, among other things, that the reason for the nonpayment of the support money was petitioner’s refusal to obey its orders. He was, therefore, adjudged guilty of contempt and ordered committed until he should have purged himself by payment of the support money.

At the oral argument before this court petitioner waived all contentions except the claim that he cannot be required to withdraw his accrued pension money in order to satisfy and discharge his delinquency with respect to the support payments. He bases this contention on the claimed exemption of the pension installments.

[534]

Ex parte Silvia,

123 Cal. 293 [55 Pac. 988, 69 Am. St. Rep. 58], it was found that the petitioner was unable to make the required alimony payment without selling or encumbering his homestead. This court there held that since the prisoner had “no means aside from his homestead, in a legal sense [he] has not the ability to pay the alimony, and his continued imprisonment is unlawful”. The soundness of this decision has never been questioned. It was cited with approval in

In Re Smallbone

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MOORE, J.,

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