If employer properly withholds child and/or spousal support from earnings, debtor can’t be held in contempt
When a former spouse (the debtor) fails to pay the child and spousal support owed, the family court will issue an earnings assignment order directing the debtor’s employer to pay a portion of their earnings to the ex-spouse (the creditor).
Section 5241(a) of the Family Code provided that, if an employer willfully failed to withhold and forward support under the earnings assignment order, the employer should pay the creditor the support that should have been withheld plus interest.
Section 5241(b) stated that, if the employer properly withheld support from the debtor’s earnings, the court could not hold the debtor in contempt or criminally prosecute the debtor for nonpayment.
In a recent case, the family court dissolved the parties’ marriage. The family court awarded the ex-wife $2,071 in monthly child support, $1,950 in monthly spousal support, and 13.5% of bonuses or commissions that the former husband received in excess of his base monthly salary.
The family court denied the ex-wife’s request for an order to determine child and spousal support arrearages against her former husband. The family court ruled that section 5241 prevented a creditor from seeking to enforce arrearages against a debtor whose employer was subject to an earnings assignment order.
In the case of Brubaker v. Strum, the California Court of Appeal for the Second District reversed the family court’s order. The appellate court ordered the family court to determine the amount of arrearages, if any, that the ex-husband owed his former wife.
The Court of Appeal held that the ex-wife’s request for an order determining arrearages was not frivolous. According to the appellate court, section 5241:
- provided that, if an employer was subject to an earnings assignment order, the debtor would be protected from attempts to hold them in contempt or to criminally prosecute them for nonpayment of support
- did not cover requests for arrearages or orders determining arrearages
- did not prevent the creditor from seeking an order to determine arrearages from a debtor
The legislative history supported this interpretation of section 5241, the appellate court said.
The Court of Appeal identified two errors in the family court’s decision. First, the appellate court found that the family court conflated the ex-wife’s request for an order to determine arrearages with an enforcement action to recover arrearages.
Second, the family court’s reasoning to deny the former wife’s request for an order determining arrearages was based on a wrong interpretation of section 5241, the appellate court said.
