On appeal from the Essex County District Court.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Burling, J.
[8 NJ Page 158] This involves two appeals on an agreed statement in lieu of record under Rule 1:2-22 addressed to the
Appellate Division of the Superior Court and certified before hearing there by this court on its own motion. The appeals seek review of a final judgment of the Essex County District Court in attachment proceedings, in favor of the plaintiff Virginia A. Hoffman (hereinafter referred to as the plaintiff), and are brought by the defendant Alfred T. Hoffman (hereinafter referred to as the defendant) and The Prudential Insurance Company of America, a New Jersey corporation (hereinafter referred to as the garnishee).
The agreed statement in lieu of record above adverted to shows among other things the following: The plaintiff, a resident of California, recovered a final judgment of divorce on January 31, 1939, in the Superior Court of the State of California by the terms of which it was decreed that the defendant was to pay to the plaintiff $50 on the first and $50 on the fifteenth day of each month for plaintiff's support and maintenance. The defendant, a non-resident of New Jersey, was an employee of the General Foods Corporation and as such was insured under a certain group insurance contract made by and between defendant's said employer and the garnishee. In this contract there was a provision which reads as follows:
"The Active Employee's or Annuitant's Certificate and the Retirement Annuity Benefits and other payments provided under this Contract are non-assignable, whether by voluntary act or by operation of law, * * *"
In the certificate issued to the defendant under that policy there appeared a similar provision, namely:
"The Retirement Annuity payments and any payment upon the death of the Annuitant, referred to herein, are non-assignable whether by voluntary action or by operation of law."
The defendant retired and pursuant to the retirement benefit terms of this contract and certificate, the garnishee became obligated to pay to the defendant $138.84 on December 1, 1949, and thereafter a like sum on the first day of each month throughout the lifetime of the defendant. Payments
to the defendant were so made on the first day of each month from December 1, 1949, to June 1, 1950. On June 2, 1950, the writ of attachment involved in this appeal was issued by the clerk of the Essex County District Court at the instance of the plaintiff. The action so instituted by her was brought to recover alleged arrearages in alimony claimed by her by virtue of the California decree hereinafter mentioned. The arrearages claimed were for the months of December, 1949, and January through June, 1950, inclusive. On July 19, 1950, the clerk of the aforesaid Essex County District Court entered a judgment in favor of the plaintiff and against the defendant on proof of affidavit. A scire facias was thereafter issued summoning the garnishee to show cause why the plaintiff should not have execution against it; the adjourned date of the hearing on the said writ was February 26, 1951. The defendant on that date moved to set aside the judgment and quash the attachment for various procedural and jurisdictional reasons and for the reason that the property sought to be attached was not subject to attachment. The garnishee joined in these motions. On April 23, 1951, the Essex County District Court entered judgment in favor of the plaintiff and against the defendant and the garnishee in the amount of $600 (reduced by the trial court from $700 to conform to the writ of attachment) and costs. The defendant and garnishee instituted these appeals which, as previously stated, reach this court by certification on our own motion.
The primary question submitted to the court for decision on these appeals is whether payments under this group insurance policy with annuities payable to a man after retirement who is not a resident of this State, are subject to attachment by his former wife to pay accrued alimony under a judgment or decree of a court in a foreign state, the wife also being nonresident here, where the terms of the annuity policy prohibit assignment by voluntary act or by operation of law.
The right of a judgment creditor in an action upon attachment is a derivative one. The obligation of the garnishee to the principal debtor was ...