198 Cal. App. 4th 807
Cal. Ct. App.2011Background
- Father appeals a trial court order denying exemption and recalling a levy on his Morgan Stanley IRA to collect child and spousal support arrears.
- State DCSS (State) sought to enforce support arrears under FIDM and Title IV-D; levy was issued without a direct court order authorizing the levy, via State DCSS notice to withhold from financial institution accounts.
- Morgan Stanley provided notice to father as required by statute, and father had actual notice and contested exemptions at a full hearing.
- Court found levy proper under statutory framework allowing levies on financial institution assets to collect overdue support, including both child and spousal support.
- Court rejected father's arguments on due process notice, custodial status, ERISA, and retroactive modification of support; hardship exemption was discretionary and properly denied in light of other income assets.
- Record included multiple hearings on exemptions and levy, with the court balancing hardship against children's and parties' needs and ultimately denying exemption for the IRA account.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proper notice of levy was required or provided | LaMoure contends no notice was provided | State DCSS provided notice via Morgan Stanley and the records show notice | Notice sufficient; due process not violated |
| Whether a court order is required to levy on a retirement account | LaMoure argues levy needed court order | Statutory scheme authorizes levy without court order | Levy proper without court order |
| Whether assets in an IRA are subject to levy for overdue support | Assets in IRA are not income and thus not levy-able | ERISA and statutory provisions authorize levy on such assets for arrears | IRA assets subject to levy; exemption denied to the extent challenged |
| Whether spousal support can be collected via levy alongside child support | Levy on IRA should not include spousal support | Child support enforcement under IV-D includes spousal support if enforced by DCSS | Levy properly included spousal support arrears under IV-D enforcement |
| Whether hardship exemption was properly denied | Hardship exemption should apply due to financial hardship | Court properly exercised discretion; exempted pension plan while leaving sufficient retirement income | Hardship exemption denial affirmed; court balanced needs and resources |
Key Cases Cited
- Gortner v. Gortner, 60 Cal.App.3d 996 (Cal. App. 1976) (actual notice can validate levy despite technical notice defects)
- County of Ventura v. George, 149 Cal.App.3d 1012 (Cal. App. 1983) (custody status not determinative of levy authority; focus on actual possession of child)
- Parscal v. Parscal, 148 Cal.App.3d 1098 (Cal. App. 1983) (ERISA-related considerations and exemptions cited in context of family support enforcement)
- Thompson v. Thames, 57 Cal.App.4th 1296 (Cal. App. 1997) (record insufficiency requires affirmance; presumption ofcorrectness for lower court)