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Fischer v. Fischer

Decided: December 30, 1952.

GERTRUDE H. FISCHER, PLAINTIFF-APPELLANT,
v.
FRANK ROLAND FISCHER, DEFENDANT-RESPONDENT



Eastwood, Goldmann and Francis. The opinion of the court was delivered by Eastwood, S.j.a.d.

Eastwood

The sole question raised by this appeal is whether pension benefits payable under R.S. 43:16-1 et seq. may be reached to satisfy an award of alimony. The Chancery Division held such pension benefits are exempt, and the plaintiff Gertrude H. Fischer appeals therefrom.

On March 10, 1947 the plaintiff obtained a decree nisi of divorce on the ground of desertion, wherein defendant was directed to pay $60 per month for the support of Mrs. Fischer and her children, in addition to $240 of arrearages of alimony pendente lite. On September 19, 1947 the amount of monthly alimony was reduced to $40. On July 19, 1951 the Chancery Division, on the plaintiff's application, and after hearings thereon, directed the Police and Firemen's Pension Fund Commission of Irvington, New Jersey, to deduct the sum of $50 each month from the pension check of the respondent, $40 to be applied to alimony and $10 to arrears of alimony of $750, and $35 counsel fees, until such arrears were paid. On February 15, 1952, on the application of the defendant and hearing thereon, the Chancery Division, under the authority of Hoffman v. Hoffman , 8 N.J. 157 (1951), vacated the aforementioned order of July 19, 1951.

The defendant relies upon the provisions of R.S. 43:16-7, the pertinent part of which reads:

"* * * All pensions granted under this chapter shall be exempt from execution, garnishment, attachment, sequestration or other legal process. * * *"

There can be no question that there is cast upon a husband the duty to support his family and that it is one of the highest obligations in our social order. 10 New Jersey Practice, Herr on Marriage, Divorce and Separation, sec. 271, p. 245; Bonanno v. Bonanno , 4 N.J. 268 (1950). Such an obligation is a continuing one notwithstanding the dissolution of the marriage where, as here, the divorce was granted on the grounds of the fault of the defendant and a proper judgment of alimony was entered. Herr on Marriage, Divorce and Separation, supra, sec. 273; Lynde v. Lynde , 64 N.J. Eq. 736 (E. & A. 1902), at p. 752, stating:

"* * * the allowance of permanent alimony in cases of absolute divorce, as a means of enforcing the continuing duty of support which the husband owed to the wife, and of which he was not permitted to absolve himself by his own misconduct, although that misconduct resulted in a dissolution of the marriage."

Further, the duty of the husband to comply with the alimony judgment is recognized in this State, and his income and property are subject thereto and may be proceeded against by sequestration. N.J.S. 2 A:34-23. It is elementary, of course, that the husband, upon failing to comply with the terms of the alimony judgment, may be proceeded against under contempt proceedings.

We are faced with the question as to whether the pension moneys of the defendant may be attached or sequestrated, at least to the extent of the monthly payments required under the alimony decree, while in the hands of the pension commission. The defendant contends that so far as New Jersey is concerned, this question has been settled adversely to the plaintiff's contention in the case of Hoffman v. Hoffman, supra , wherein Mr. Justice Burling, speaking for the Supreme Court, stated, inter alia:

"That the policy of this State is in favor of exemptions from civil process in cases of public pension funds appears from an analysis of legislative treatment thereof," citing the several New Jersey statutes dealing with such exemptions.

In the Hoffman case Mr. Justice Burling further discussed the plaintiff's argument of the

"analogy to the law relating to trusts created by deed or will which contain provisions restraining alienation or anticipation of the beneficial interest, generally denominated for descriptive purposes as 'spendthrift ...


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