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Fischer v. Fischer

Decided: June 25, 1953.

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



On appeal from the Appellate Division of the Superior Court, certified by the Supreme Court on plaintiff's motion.

For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Jacobs and Brennan. For affirmance -- Justices Wachenfeld and Burling. The opinion of the court was delivered by Heher, J. Burling, J. (dissenting). Wachenfeld, J., concurs in this dissent.

Heher

We are concerned here with the question of whether the pension provided by R.S. 43:16-1 et seq., as amended, is wholly immune from judicial appropriation, before the individual installments reach the hands of the pensioner, to the satisfaction of alimony established by judgment.

The old Court of Chancery awarded plaintiff a decree of divorce from defendant for desertion. The decree nisi, entered March 10, 1947, made provision for alimony at the rate of $60 per month, later reduced to $40 per month; the decree was followed by an absolute decree of divorce on June 11, 1947. Defendant defaulted in the payment of the alimony thus decreed; and, the default continuing, and contempt proceedings proving futile, the Chancery Division of the Superior Court on July 19, 1951, when the arrears amounted to $740, ordered the Police and Firemen's Pension Fund Commission of the City of Irvington to make monthly deductions of $40 from the pension payable to defendant as a retired police officer of Irvington, and an additional $10 per month to be applied to the arrears and an unpaid allowance to counsel until full satisfaction was had, and that such moneys be turned over to plaintiff. The pension is at the

rate of $101.56 per month. The deductions were made until March 12, 1952, when the order was vacated (the alimony was at the same time reduced to $30 per month, effective February 21, 1952) on the ground that the order directing the deductions from the installments of pension was coram non judice under the principle of Hoffman v. Hoffman, 8 N.J. 157 (1952). The order annulling the pension allotment constitutes the subject matter of the appeal taken April 25, 1952. It was affirmed by the Appellate Division. 24 N.J. Super. 180 (1952).

Defendant remarried and is now cohabiting with his second wife.

It is insisted in limine that since the time for appeal from the order of July 19, 1951 had expired when the motion to reopen the order was made on February 15, 1952, what is termed a "change" by this court of "its prior decision on a question of common law," presumably a reference to the Hoffman case cited supra, is not a sufficient ground for the vacation of the original order -- citing, among other cases, Miller v. McCutcheon, 117 N.J. Eq. 123 (E. & A. 1934).

But, as we shall see, the Hoffman case is not apposite; and at all events, and for obvious reasons, a continuing order for the payment of money, as in this case, is not proof against formal judicial termination, once it is shown to be void as an excess of judicial power. And even though voidable merely, it cannot stand as to payments in futuro when its invalidity is established. All this is axiomatic truth. Rule 3:60-2 of this court provides that a final judgment, order or proceeding may be vacated where, inter alia, "it is no longer equitable that the judgment or order should have prospective application," or for any reason other than those therein specifically enumerated "justifying relief from the operation of the judgment or order." The motion is required to be made within a reasonable time, and in certain cases not inclusive of the present not later than "one year after the judgment, order or proceeding was entered or taken." Vide Johnson & Johnson v. Weissbard, 11 N.J. 552 (1953). The rule also provides that a void judgment or order may be vacated; but

a judgment or order of this class may be assailed at any time, directly or collaterally, for it is utterly without vitality and of no force or significance, unless perchance there be grounds for an estoppel. And, such being the case, it does not matter that the attack comes for the first time in this court.

The exemptive clause of the statute is in these words: "All pensions granted under this chapter shall be exempt from execution, garnishment, attachment, sequestration or other legal process." R.S. 43:16-7, as amended by L. 1944, c. 253, p. 829. The amendment introduced this provision into the statute.

The argument is that this immunity is by its terms embracive of all judicial processes to enforce decrees for alimony. It is said that the provision expresses a "legislative social policy" freeing such pensions "from direct attack from any source, when not deliberately created to defeat the claims of creditors, leaving the person otherwise free to enforce his claim by other legal and equitable remedies against" the pensioner, "and not against the res." The Hoffman case is deemed conclusive of the inquiry; and it is remarked that in none of the statutory immunity clauses of the various pension acts is there in terms "an exception in favor of a divorced wife."

A pension such as this is a stated allowance or stipend to one retired from service, in consideration of past services. The pensioning of civil servants, as well as those in private employment, is designed primarily to attain suitable standards of service at a relatively low wage cost, by a guarantee against want when the servant's years of productivity have ended, thus heightening the morale of the workers and enhancing the quality of the service. Plunkett v. Board of Pension Commissioners of Hoboken, 113 N.J.L. 230 (Sup. Ct. 1934), affirmed 114 N.J.L. 273 (E. & A. 1935). Considered in context, the immunity clause constitutes a protection against improvidence and creditors in the broad general ...


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