October 9, 1979
Subject:
Counties, Municipalities, Garnishment, Child Welfare, Garnishment for Enforcement of Child Support, N.C.G.S. 110-136.
Requested By:
Rufus C. Boutwell, Jr. Assistant City Attorney City of Durham
Question:
Does a city have immunity from garnishment proceedings brought for child support under
N.C.G.S. 110-136?
Conclusion:
No. The legislative intent of Article 9, Chapter 110 of the General Statutes is to provide financial support for dependent children and to provide an enforcement procedure against the parent responsible for providing support to such children. Thus, limited to the narrow area of child support under Article 9, it is the opinion of this Office that the General Assembly did not intent to provide a remedy of support for all children except those whose parents are employed by a governmental entity. Therefore, the city may be a garnishee for this limited purpose.
We find no North Carolina case dealing with the specific question in the area of child support or construing G.S. 110-136 where a governmental entity was the garnishee. The general rule in this State, and apparently the majority rule, is that the State, or political subdivisions and agencies thereof, cannot be summoned as garnishees in any action without statutory authority. Various reasons have been given by the courts, including the reason that public policy demands the exemption of the government and its agencies from liability as garnishees. In Swepson v. Turner, 76 N.C. 115, the North Carolina Supreme Court adopted the public policy view. So far as can be ascertained, however, this case has not been cited or relied upon in this State since the opinion was written in 1877.
We do not depart from the general rule stated above, but we do construe the language of G.S. 110-136, and the purpose set forth in G.S. 110-128 as revealing a legislative intent to provide child support for all dependent children and not to discriminate against those children whose parents happen to be employed by the State or any of its agencies or political subdivisions thereof.
The pertinent statute, G.S. 110-136, providing for garnishment for enforcement of child-support obligation, commences with the words "(notwithstanding) any other provision of the law". These words generally mean in spite of other provisions and that the statute operates without obstruction from other statutes. This has been held to carry over to decisional law. Dover v. Dover, 15 C.A. 3d 675, 93 Cal. Rptr. 384; Words and Phrases, Vol 28A.
Further, the garnishment statute under inquiry provides, in part, that "(the) garnishee is the persons, firm, association, or corporation by whom the responsible parent is employed." G.S. 110-136(a). G.S. 12-3(b) defines the word "person" as extending to and applied to bodies politic and corporate, as well as individuals, unless the context clearly shows otherwise. A body politic is a State, county or municipal corporation. Student Bar Asso. v. Byrd, 293 N.C. at 600. Thus, we construe the word "person" as used in G.S. 110-136 as embracing the State, a county or municipality.
The welfare of children has always been a paramount concern of the courts and the State. The General Assembly, in recent years, has expressed its concern in this area by the enactment of various legislation. It does not seem reasonable to think that it intended to deny a valuable remedy for enforcement of the support obligation to some children simply because the responsible parent is an employee of the State, county, city or other governmental entity.
We hold, therefore, that, by reasons of the legislative intent and public policy expressed in G.S. 110-136, the statute is applicable to the State, counties and municipal corporations, and they are not immune from garnishment proceedings brought thereunder.
Rufus L. Edmisten Attorney General
William F. Briley Assistant Attorney General