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BIRCHFIELD v. BIRCHFIELD et al.
64973.
MCMURRAY, Presiding Judge.
Garnishment. Newton Superior Court. Before Judge Ridgway.
This is a garnishment proceeding. The defendant is a resident of California and receives payment of retirement benefits from the Marine Corps Finance Center in Kansas City, Missouri. Plaintiff initiated a continuing garnishment seeking to recover a default judgment for an arrearage of support payments (child support and alimony) arising from a court order granting divorce. The garnishee, Commanding Officer of the Marine Corps Finance Center, answered by paying certain sums into the registry of the trial court.
Defendant filed a motion to dismiss the garnishment action for lack of subject matter jurisdiction and lack of jurisdiction over defendant's person and property. The trial court granted defendant's motion to dismiss for "lack of a res within the forum state that is subject to garnishment." Plaintiff appeals, contending that the sum paid into the registry of the trial court is a sufficient res conferring jurisdiction upon the trial court. Held:
46-702 (c) (Ga. L. 1980, pp. 1769, 1775) (now OCGA 18-4-111 (c), effective November 1, 1982).
In the case sub judice the sum paid into the registry of the trial court by the garnishee being the benefits of a retirement plan which never reached the hands of the defendant, the sum is exempt from the process of garnishment under the provisions of Code Ann. 46-302, supra. This statutory exemption is not limited by the language of Code Ann. 46-301 (d) (Ga. L. 1980, pp. 1769-1771) (now OCGA 18-4-20 (f), effective November 1, 1982).
The only property which plaintiff contends defendant has within the state being exempt from garnishment, the trial court did not err in dismissing the garnishment. Davis v. Davis, 161 Ga. App. 722, supra. Compare also Williamson v. Williamson, 247 Ga. 260, 262 (2) (275 SE2d 42).
Robert P. Hein, for appellees.
Timothy A. Siler, Mark E. Layng, for appellant.
DECIDED JANUARY 13, 1983.
Thursday May 21 19:18 EDT


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