In Re Marriage of Johnson-Wilkes & Wilkes

The Family Code authorizes the obligee of a family support order to obtain an “earnings assignment order for support” (hereafter assignment order) which may be served on the holder of “earnings,” e.g., wages or other payments due the obligor as a result of an enforceable obligation. (Fam. Code, § 5200 et seq.) Some payments that might otherwise count as “earnings” are shielded from assignment by incorporation of the exemptions from execution in the Code of Civil Procedure. (Fam. Code, § 5206.) By this measure the benefits from a disability insurance policy are exempt from enforcement by an assignment order. (Code Civ. Proc., §§ 703.070, subd. (b), 704.130, subd. (a).)

If the obligee improvidently serves the assignment order on an exempt source of income the Family Code provides no remedy for the obligor whose income is wrongly levied. (See Fam. Code, §§ 5270, 5271.) However, the superior court, in the exercise of its equitable powers, may quash the service of an assignment order which has been improvidently served.

In this case the assignment order was served on an exempt source of income, the obligor’s disability insurer. There being no equitable defense to the motion…