For reversal and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Schettino, J.
The defendant, Rina C. Thiel, appealed from an order of the matrimonial branch of the Superior Court, Chancery Division, discharging an order to show cause which, inter alia, had enjoined garnishee, Koppers Company, Inc., from disposing of pension funds due plaintiff from Koppers. While the appeal was pending in the Appellate Division, we certified it on our own motion.
The Thiels were married in 1945 and are childless. They were residents of New Jersey at the time; Mrs. Thiel still resides here. Her husband moved to Florida after a pendente lite support order was entered against him in this proceeding. The defendant wife filed several complaints against her husband in the Bergen County and Hudson County Juvenile and Domestic Relations Courts resulting in various support orders which, the wife alleges, plaintiff did not obey. On April 11, 1962 plaintiff filed a suit for a divorce alleging a 1958 desertion. The wife denied the allegations and counterclaimed for support and counsel fees. By the pendente lite order dated June 13, 1962 the court granted her $52 per week for support and $150 counsel fees and costs. Plaintiff complied to a limited extent for support but made no payment of counsel fees and costs. He finally stopped all payments, retired with a pension of $185.74 per month from his job with Koppers and as stated above moved to Florida. Plaintiff's pension appears to be his only asset in our State.
In September 1962 defendant brought contempt proceedings against plaintiff and thereafter moved to cut off her husband's pension payments, to sequester the pension funds, and
to have them paid to her directly in satisfaction of the support order.
The labor contract between the employer and plaintiff's union, which created the pension, a noncontributory one, provided that: "No assignment of any pension will be recognized or permitted nor shall any pension or payment on account of any pension be subject to attachment, execution or other legal process against the PENSIONER." The parties orally stipulated before the trial court that this provision was the subject of long negotiations between the company and the union.
On the basis of the exemption clause, plaintiff and Koppers contested defendant's motion. The trial court held this clause to preclude relief and entered the order appealed from.
The issue before us is whether the above-quoted exemption bars recourse to the husband's pension payments for the wife's support. We limit our decision to the particular contract and its provision and to the facts of this case.
A man's duty to support his family is one of the highest obligations in our social order. In Bonanno v. Bonanno, 4 N.J. 268, 273 (1950), we said: "The duty to support and maintain his wife is the husband's primary obligation and arises out of the status of wedlock by reason of public policy recognized and enforced by civil and common law, and by the legislation incorporated in R.S. 2:50-39 (PL 1907, ch. 216, sec. 26, p. 482)." The obligation is such that even though he may not be able to work, if he has other means, he is required to apply them equitably in the discharge of this duty. (at p. 273)
The public's concern with that duty is evidenced, for examples, by the persistence of that obligation despite discharge in bankruptcy, 11 U.S.C.A. § 35, subd. a (2), (Supp. 1962), by the continued availability of the extraordinary process of ...