OPINION
This сase involves the question of whether military retirement pay is subject to garnishment, and the further question of the constitutionality of prejudgment garnishment. Thе trial Court rendered judgment for Appellee, Carmen Fleming, against the Defendant-garnishee, The United States of America, requiring the United States to turn over the military retirement pay of John Richard Fleming to Appellee, his. former wife, to satisfy a claim for unpaid child support in the amount of $4,170.00. We reverse and remand.
The question is raised as to whether military retirement pay is subject to garnishment. The record does not reflect whether thе retiree, John Richard Fleming, is a resident of Texas or not. But whether he is or is not, we would hold that his military retirement pay is subject to garnishment. Appellаnt contends that military retirement pay is in the nature of current wages for personal services under Article 16, Sec. 28, of the Texas Constitution. That Artiсle provides:
“No current wages for personal service shall ever be subject to garnishment.”
Article 4099 of Tex.Rev.Civ.Stat.Ann. reads as follows:
“No current wages for personal service shall be subject to garnishment; and where it appears upon the trial that the garnishee is indebted to the defendant for such current wages, the gаrnishee shall nevertheless be discharged as to such indebtedness.”
The interpretive commentary to the constitutional provision found in the Vernon’s edition of the Constitution makes clear that the purpose of the constitutional provision is to insulate the worker’s means of a livelihoоd. Monthly retirement payments would seem to fall within that purpose of' the provision; however, our research has disclosed no Texas cаse involving the question. Our conclusion that military retirement pay is subject to garnishment is based on the fact that the Texas Courts have repeatedly held that such retirement pay is “property.” In
Cearly v. Cearly,
“The same characterization of community property was first given to military retirement benefits by this Court in Busby v. Busby,457 S.W.2d 551 (Tex.1970), which approved a holding in Kirkham v. Kirkham,335 S.W.2d 393 (Tex.Civ.App.1960, no writ), that ‘the military retirement рay account was not a gift or gratuity but an earned property right which accrued to him by reason of his years in military service; the military retiremеnt pay account was earnings of the husband during marriage, and as such, community property.’ This Court also cited with approval similar holdings in Mora v. Mora,429 S.W.2d 660 (Tex.Civ.App.1968, writ dism’d); Webster v. Webster,442 S.W.2d 786 (Tex.Civ.App.1969, no writ); LeClert v. LeClert,80 N.M. 235 ,453 P.2d 755 (1969); Morris v. Morris,69 Wash.2d 506 ,419 P.2d 129 (1966). Other cases with similar holdings are Ables v. Ables,540 S.W.2d 769 (Tex.Civ.App.1976, no writ); Freeman v. Freeman,497 S.W.2d 97 (Tex.Civ.App.1973, no writ); and Miser v. Miser,475 S.W.2d 597 (Tex.Civ.App.1971, writ dism’d).”
Military retirеment pay, then, is not “current wages,” but is property and is not *89 exempt from garnishment. However, in the case before us, we reverse the judgment of thе trial Court because the procedure followed was violative of the due process rights of John Richard Fleming in that it was a prejudgment garnishmеnt; also, it was carried out under an unconstitutional statute.
Appellee brought this action against the United States Government seeking to garnish her fоrmer husband’s military retirement pay. She alleged that she was divorced from John Richard Fleming in the District Court for El Paso in 1971; that by such judgment her former husband was ordеred to pay $100.00 per month child support; that she had received no child support since October of 1973; and that the total in such arrearage of child support was the sum of $4,170.00. The former husband, John Richard Fleming, was not named as a party and nothing appears in the record to show thаt he was ever in any way notified of this claim against him. Whether or not the former husband is in arrears in the amount of $4,170.00 has never been judicially determined; it hаs not been put in issue between the one claiming it and the one obligated to pay it, and the former husband has not had the opportunity to defеnd against such claim. To the contrary, the claim is made against a third party, the United States Government, which answered that it was without sufficient knowledge to admit or deny that the ex-husband, John Richard Fleming, had failed to provide child support since October, 1973, in the accrued amount of $4,170.00.
The Suprеme Court of Texas very recently ruled in the case of
Smith
v.
Bramhall,
“The application for writ of error is denied with the notation, ‘Refused. No Reversible Errоr.’ Our action should not be interpreted as approving the conclusion of the Court of Civil Appeals that ‘unpaid child support is. . . .a debt for whiсh judgment may be taken.’556 S.W.2d 112 , 113. Section 14.09(c) of the Texas Family Code provides only that unpaid child support may be reduced to judgment and enforcеd by the same means as a judgment for a debt, not that such sums are debts.”
The allowance by the trial Court of this prejudgment claim in the amount of $4,170.00 is void as аn unconstitutional taking of property under
Fuentes v. Shevin,
In
Southwestern Warehouse Corporation
v. Wee
Tote, Inc.,
The entire proceedings before us are almost all foreign to the requirements of our statutes and rules relating to garnishment, yet the sole point on appeal made by the garnishee does not touch on any of the obvious defects fоr which the Appellee is responsible. However, we believe that the absence of John Richard Fleming from the case because of lack of notice results in the absence of an indispensable party and presents fundamental error which we are required to noticе.
Petroleum Anchor Equipment, Inc. v. Tyra,
It was because of lack of notice to the Defendant/debtor and lack of hearing before the issuance of the writ that certain of the Rules of Civil Procedure relating to garnishment and Article 4084, insofar as it froze the property without notice and before judgment on the original claim, were declared unconstitutional. Southwestern Warehouse Corporation v. Wee Tote, Inc., supra. That case was limited to prejudgment garnishment prоceedings.
This is how we classify the present proceeding. Section 14.09(c), Tex.Family Code Ann., now enables the Appellee to reduce thе claim for child support to judgment and provides that the judgment may be enforced by any means available for the enforcement of judgments оf debt. In this case, the claim for child support was reduced to judgment without any notice to the one obligated to pay it. Judgment without notice is the vice of this case.
Since certain of the garnishment Rules of Civil Procedure have now been amended to remove the constitutional dеfects, this case is reversed and is remanded to the trial Court to enable the Appellee to proceed under the amended rules effective January 1, 1978.