Jones v. Thibodeaux

488 So. 2d 945
Supreme Court of Louisiana·Decided May 20, 1986·No. 85-C-2325·Published·Cited by 2 cases

Opinion

488 So.2d 945 (1986)

Judy Theresa JONES
v.
Lee Anthony THIBODEAUX.

No. 85-C-2325.

Supreme Court of Louisiana.

May 20, 1986.

*946 Kim A. Gandy, New Orleans, for applicant.

Floyd J. Reed, Reed & Reed, New Orleans, for respondent.

WATSON, Justice.

The question is whether a debtor's exemption from seizure for child support obligations is seventy-five percent of his disposable earnings, except when the Department of Health and Human Resources is involved.

FACTS

After a paternity suit, defendant, Lee Anthony Thibodeaux, was decreed to be the natural father of a child born to plaintiff, Judy Theresa Jones, in 1979. Defendant was ordered to pay child support as of June, 1981.

This rule for past due support, garnishment of wages, attorney's fees, court costs and contempt was filed August 31, 1984. It alleges that defendant was ordered to pay child support of $350 per month beginning July 28, 1984, made one payment, but paid only $250 in the second payment and has not attempted to discharge the retroactive support owed in the amount of $12,600.

Defendant admitted his net income is $1,732.98 a month.[1] He is divorced and has two sons from his marriage, one living with him and the other in Chicago. There is a judgment against him for delinquent child support, expenses and attorney's fees for about $37,535.[2] Plaintiff was unemployed at the time of the hearing. She lost her job on March 12, 1984, and owes substantial debts as a result of not receiving child support until her son reached five years of age.

The trial court concluded that twenty-five percent of defendant's net salary could be assigned to support of his natural child. It ordered that twenty-five percent of defendant's net earnings, not to exceed $400 per month, be withheld from his wages. From that sum, $386 was to be credited to past due support and the balance of $14 a month to current support. Any other responsibility for current support was suspended.

The court of appeal amended the judgment, assigning plaintiff twenty-five percent of defendant's net wages, allocating $350 to current child support and any balance to past due support. Additionally, plaintiff was awarded $500 for attorney's fees, and all costs. Jones v. Thibodeaux, 479 So.2d 21 (La.App. 4 Cir.1985). A writ was granted to review the judgment of the court of appeal. 481 So.2d 620 (La., 1986).

LAW

In 1979, LSA-R.S. 13:3881 A.(1) provided that seventy-five percent of a debtor's disposable earnings for any week was exempt from seizure.[3] This section of the statute was amended and reenacted in 1980 to add the following sentence:

"§ 3881. General exemptions from seizure
"* * * However, the exemption from disposable earnings for the payment of a current or past due child support obligation, or both, is fifty percent of disposable *947 earnings. The term `disposable earnings' means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld."

In 1981, Act No. 36 of the Extra Session[4] made extensive statutory revisions designed to aid the Department of Health and Human Resources in developing and implementing a program of family support. As part of Act 36, LSA-R.S. 13:3881 A.(1) was reenacted to read, in pertinent part, as follows:

"However, the exemption from disposable earnings for the payment of a current or past due support obligation, or both, for a child or children, or for a spouse, or former spouse, if the Department of Health and Human Resources is providing support enforcement services to the spouse, is fifty percent of disposable earnings. The term `disposable earnings' means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld."

Blanchard v. Blanchard, 466 So.2d 569 (La.App. 5 Cir., 1985) held that LSA-R.S. 13:3881, construed with LSA-R.S. 46:236.3, allows fifty percent of a debtor's disposable earnings to be seized for child support obligations. On July 28, 1984, the effective date of the support order, LSA-R.S. 46:236.3[5] stated, in pertinent part:

"In all cases in which support has been ordered for any person, or when such support rights have been assigned to the Department of Health and Human Resources....
* * * * * *
"Upon determination that there is a continuing obligation for child support and that child support payments are past due, the court shall order the employer to withhold from the personal earnings of the person the amount ordered for support, as it becomes due, together with an additional sum set by the court to discharge the past due amount, or fifty per cent of the disposable earnings as defined in R.S. 13:3881, whichever is less, and to continue the withholding each pay period until further order of the court as provided in R.S. 46:236.3(3) or (7). In no event shall the withholding be greater *948 than fifty percent of the disposable earnings...."

The Blanchard court stated:

"When read together, the statutes provide that in cases of child support obligations, up to 50% of a debtor's disposable earnings may be seized (here, assigned) to satisfy a past due or current support obligation. However, it should be noted the same is not true where the obligation of support is for the spouse. In that case, the creditor may only garnish up to 50% of the debtor's disposable earnings when the spouse is receiving support services from the Department of Health and Human Resources. Otherwise the spouse is limited to 25% of disposable earnings because the general 75% exemption applies. In the instant case, the judgment only provides for child support payments, and the 50% limitation applies." 466 So.2d at 571-572.

CONCLUSION

LSA-R.S. 13:3881 A.(1) can be read in two ways. It intends either: (1) a fifty percent exemption from seizure for all child support obligations; or (2) a fifty percent exemption from seizure for child support obligations only when the Department of Health and Human Resources is providing enforcement services to a spouse.

When the statute was amended in 1981, it was part of a comprehensive scheme dealing with the support enforcement program of the Department of Health and Human Resources. It is most unlikely that the legislature, in granting the DHHR up to fifty percent of a spouse's disposable earnings, intended an implied repeal of the prior year's legislation allowing seizure of fifty percent of disposable earnings for any child support obligation.[6] An ambiguous statute, which can be interpreted in either *949 of two ways, must be read in light of the underlying public policy and the dictates of common sense. Gulf Oil Corporation v. State Mineral Board, 317 So.2d 576 (La., 1975). Implied repeal of statutory provisions is not favored. Chappuis v. Reggie, 222 La. 35, 62 So.2d 92 (1952); Fakier v. Picou, 246 La. 639, 166 So.2d 257 (1964); State v. Echezabal, 220 La. 1101, 58 So.2d 398 (1952).

Not only is the court of appeal's interpretation of the statute illogical, it has dubious constitutional validity. Art. 1, § 3 of the Declaration of Rights in the Louisiana Constitution of 1974 provides:

"No person shall be denied the equal protec

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