Can a North Carolina city be served with a garnishment for child support when the noncustodial parent is a city employee, or does sovereign immunity protect the city from garnishment proceedings?
Plain-English summary
Rufus C. Boutwell, Jr., Assistant City Attorney for the City of Durham, asked whether a city had immunity from a child support garnishment served on it under N.C.G.S. 110-136. The city was being asked to act as garnishee for one of its employees, with the proceeds going to support the employee's children.
The 1979 AG concluded that the city is not immune.
The opinion starts with the general rule from older North Carolina case law: "the State, or political subdivisions and agencies thereof, cannot be summoned as garnishees in any action without statutory authority." The leading case is Swepson v. Turner, 76 N.C. 115 (1877), where the Supreme Court adopted public-policy reasons for the immunity. The AG noted that Swepson had not been cited or relied upon in North Carolina since it was written, suggesting it was old law and not necessarily controlling.
But the AG did not even need to confront Swepson directly. G.S. 110-136 has its own structure that breaks through the general rule.
Notwithstanding clause. G.S. 110-136 starts with "notwithstanding any other provision of the law." That phrase, in North Carolina statutory construction, means the statute operates "in spite of" other provisions and "without obstruction from" them. The AG cited Dover v. Dover, 15 C.A. 3d 675 (a California case in Words and Phrases), for the proposition that the notwithstanding clause sweeps aside not only conflicting statutes but also conflicting decisional law. So even if Swepson still controlled, the notwithstanding clause would override it for garnishment purposes under 110-136.
Definition of "person." G.S. 110-136(a) defines garnishee as "the persons, firm, association, or corporation by whom the responsible parent is employed." G.S. 12-3(b) defines "person" as extending to "bodies politic and corporate, as well as individuals, unless the context clearly shows otherwise." The Supreme Court has held that a body politic is "a State, county or municipal corporation" (Student Bar Asso. v. Byrd, 293 N.C. at 600). So the word "person" in G.S. 110-136 reaches the State, counties, and cities, unless the context suggests otherwise.
Legislative purpose. Article 9 of Chapter 110 (the Child Support Enforcement Act) exists to ensure financial support for dependent children. Excluding governmental employers from garnishment would create a category of children, those whose noncustodial parent works for the State or a city or county, who could not enforce support orders. The AG read the legislative intent as not creating that gap.
So, narrowly within the scope of G.S. 110-136 child support garnishments, the city, county, or State may be summoned as garnishee.
Currency note
This opinion was issued in 1979. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Federal law has subsequently established uniform requirements for state child support enforcement, including the State Income Tax Refund Offset, the Federal Parent Locator Service, and uniform income withholding orders. Modern child support enforcement against government employers operates through frameworks established by the Family Support Act of 1988 and the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Current questions about garnishment of public employee wages should be addressed under current statutes and federal frameworks.
Historical context: what the AG concluded
The opinion's analytical work is three parts of statutory construction:
The notwithstanding clause as override. This is the strongest single argument. The statute starts with "notwithstanding any other provision of the law," and that phrase has well-established interpretive weight in North Carolina. The AG cited Dover v. Dover (a California case) for the proposition that the clause carries over to decisional law as well as statutory provisions. That means the Swepson v. Turner immunity doctrine, even if it was still good North Carolina law, would be overridden by the notwithstanding clause for purposes of 110-136.
The person-as-body-politic chain. Three statutes link together. G.S. 110-136(a) uses "person." G.S. 12-3(b) defines "person" to include bodies politic. Student Bar Asso. v. Byrd defined body politic to include cities. So "person" in 110-136 reaches cities. The chain is solid because each step is grounded in either statute or controlling case law.
Legislative purpose as confirmation. The opinion's policy argument backstops the statutory argument. If the legislature wanted to exclude government employers, it would have said so. Instead, it used inclusive language ("notwithstanding any other provision of the law" and "persons, firm, association, or corporation"). Reading those phrases narrowly to preserve sovereign immunity would create a class of children unable to enforce support against government-employee parents, which is contrary to the Article's child welfare purpose.
The opinion is careful to limit the conclusion. It says: "limited to the narrow area of child support under Article 9, it is the opinion of this Office that the General Assembly did not intend to provide a remedy of support for all children except those whose parents are employed by a governmental entity." The narrowness is important. The opinion does not say cities can be garnished for any debt. It says cities can be garnished under this specific statute for this specific purpose.
The Swepson v. Turner aside is also significant. By noting that Swepson had not been cited in over a century, the AG signaled that the general immunity doctrine might be weaker than it appears in old treatises. The opinion does not reject Swepson, but it positions it as a doctrine that has not been actively reaffirmed.
Background and statutory framework
Garnishment is a remedial procedure by which a creditor reaches money owed to the debtor by a third party (the garnishee). The classic case is wage garnishment, where the creditor obtains a court order directing the debtor's employer to withhold a portion of wages and pay them to the creditor.
The general North Carolina rule (and the majority American rule) is that governments are not subject to garnishment without statutory authorization. The rationale, articulated in Swepson v. Turner (1877), was public policy: governments should not have to take time from public business to act as collection agents for private creditors, and government finances should not be tied up by garnishment orders.
The Child Support Enforcement Act, Article 9 of Chapter 110, was enacted in 1975 to implement federal Title IV-D requirements for state child support enforcement. G.S. 110-136 was the garnishment provision. It allowed garnishment of wages to enforce child support obligations.
The "notwithstanding any other provision of the law" clause in G.S. 110-136 was a powerful drafting choice. The North Carolina courts have read such clauses to override conflicting statutes and (per the AG's Dover v. Dover citation) conflicting decisional law. The clause was particularly relevant because various exemptions and procedural rules existed elsewhere in the General Statutes that could have limited garnishment otherwise.
G.S. 12-3(b) is the general statutory construction provision for the word "person." It extends "person" beyond natural persons to include "bodies politic and corporate" unless the context clearly shows otherwise. Bodies politic include states, counties, and municipalities. So the default meaning of "person" in any North Carolina statute reaches government entities.
The federal Title IV-D framework, which drove the enactment of the Child Support Enforcement Act, also drove subsequent amendments. Federal law eventually required uniform income withholding orders for child support, which apply to all employers (including governments) by federal command. The federal framework essentially codified the AG's 1979 conclusion as a national rule.
Common questions
Could a city refuse to honor a garnishment for some other type of debt?
The opinion is narrow. It addresses only child support garnishment under G.S. 110-136. Other types of garnishment (a private commercial debt, for example) would face the general Swepson v. Turner immunity doctrine without the notwithstanding clause to override it.
How does the city actually process a garnishment when it gets one?
The city's payroll office would treat it like any other garnishment: identify the employee, calculate the amount to be withheld from each paycheck, remit the withheld amount to the designated recipient (usually the State Child Support Enforcement collection unit). The administrative work is the same as for a private employer.
Could the city require a special procedure or fee?
Some states and localities charge a small administrative fee for processing garnishments. North Carolina law might or might not authorize such a fee for child support garnishments. The opinion does not address fees.
What if the employee is also receiving a public retirement benefit?
Public retirement benefits have their own statutory framework, and questions about garnishment of pension payments would need to be analyzed separately. The opinion deals with wage garnishment of an active employee.
Does this opinion's reasoning extend to State employees?
Yes. The opinion explicitly says "(the) statute is applicable to the State, counties and municipal corporations, and they are not immune from garnishment proceedings brought thereunder." State employees' wages can be garnished for child support just like county and city employees' wages.
Source
- Landing page: https://ncdoj.gov/opinions/counties-municipalities-garnishment-child-welfare-garnishment-for-enforcement-of-child-support/
Citations
- N.C.G.S. 110-136
- N.C.G.S. 110-136(a)
- G.S. 110-128
- G.S. 12-3(b)
- Swepson v. Turner, 76 N.C. 115
- Dover v. Dover, 15 C.A. 3d 675, 93 Cal. Rptr. 384
- Student Bar Asso. v. Byrd, 293 N.C. at 600
Original opinion text
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