In Re Marriage of Stutz

Opinion

EVANS, J.

In 1973, an interlocutory judgment of dissolution of marriage was entered requiring appellant husband to pay certain sums to respondent wife for the support of their two minor children. The judgment also incorporated certain provisions of a “Stipulation Regarding Division of Community Property.” As a result of appellant’s failure to make any payments for the support of his children, respondent received aid to families with dependent children from 1973 until 1979 when the parties apparently reconciled.

The District Attorney for San Joaquin County secured an order modifying the decree of dissolution, which directed that payment of the

[1040]

ordered child support be made through the family support division of that office.

On August 24, 1979, the family support division secured a wage assignment order directing payment of $150 per month on the current support obligation and $50 per month on the amount of child support determined to be past due.

Appellant appeals the denial of his petition to set aside that order and raises two contentions: (1) that Civil Code section 4701 does not authorize wage assignments for past-due child support payments; and (2) that by continuing to reside in the family home while appellant made the mortgage payments, respondent both impliedly and expressly waived her right to child support.

I

Having found appellant to be in arrears on his obligation to support his minor children, the trial court was compelled to order the wage assignment.

(In re Marriage of De More

(1979) 93 Cal.App.3d 785, 786-787 [155 Cal.Rptr. 899].) At the time of entry of the order, Civil Code section 4701, subdivision (b), provided in part that when the court has ordered payment for support of a minor child, “upon both a petition by the person to whom support has been ordered to have been paid and a finding by the court that the parent so ordered is in arrears in payment in a sum equal to the amount of two months of such payments within the 24-month period immediately preceding submission of such petition, the court shall order the defaulting parent to assign” that portion of the wages as will be sufficient to pay the amount ordered by the court for support.