Gaulkin, Lewis and Kolovsky. The opinion of the court was delivered by Gaulkin, S.j.a.d.
On February 10, 1965 plaintiff (hereafter wife) was awarded alimony of $30 per week, and $17.50 per week for the support of each of the four children of the marriage placed in her custody. As of March 25, 1966 defendant Steller (hereafter husband) was in arrears $3,292, and a judgment in that sum was docketed thereon against him.
On August 19, 1965 the husband suffered a compensable injury. On April 1, 1966 the Matrimonial Division ordered that "while defendant continues to receive * * * temporary compensation [of $45 per week], he is to pay the sum of $30 per week, that is, $10.00 per week for his ex-wife, * * * and, $20.00 per week for support of their * * * children * * * the balance of $70.00 per week due on the original order of $100.00 per week * * * together with the [$3,292.] arrears is to be paid out of any final workmen's compensation award." (emphasis ours) Note that the order does not say who is to pay this sum out of the final award. It must have been the husband who was meant, for the employer and its insurance carrier were not parties or before the court when the order was entered. Respondent Aetna Casualty and Surety Company (Aetna) was made a party to this appeal by order of this court.
On February 28, 1967 a final award was made to the husband of 213 I/4 weeks compensation at the rate of $40 per week. By this time the arrears allegedly totalled more than $7,700. Plaintiff then moved to collect the total arrears out of the award. The trial court denied the motion on the ground that R.S. 34:15-29 forbids reaching a compensation award to pay alimony or support. We granted leave to appeal.
R.S. 34:15-29 provides that workmen's compensation "shall not be assignable, and shall be exempt from all claims of creditors and from levy, execution or attachment."
The husband appeared at the oral argument of this appeal without counsel and stated that he is now employed and
earning over $200 per week and that he is willing to support his wife and children. Aetna states that it has no interest in the outcome of this action and will abide by the decision of the court. However, it does say that it believes the order appealed from should be affirmed.
Plaintiff argues that language similar to the language of R.S. 34:15-29 has been held to permit reaching pensions to pay alimony and support, citing Fischer v. Fischer, 13 N.J. 162 (1953); Thiel v. Thiel, 41 N.J. 446 (1964), and Williams v. City of Newark Dept. of Public Welfare, 43 N.J. Super. 473 (Cty. Ct. 1957). She contends that the rationale of those cases applies here, and we should so construe R.S. 34:15-29.
In Fischer the husband was $740 in arrears in his alimony payments and, "the default continuing, and contempt proceedings proving futile," the court ordered the Police and Firemen's Pension Fund Commission to pay to the wife, out of the husband's $101.56 monthly pension, "$40 * * * and an additional $10 per month to be applied to the arrears * * *." The pension statute (R.S. 43:16-7) provided that "All pensions granted under this chapter shall be exempt from execution, garnishment, attachment, sequestration or other legal process." The Supreme Court held that the statute did not immunize pensions from appropriation to pay alimony. It said:
"* * * Considered in context, the immunity clause constitutes a protection against improvidence and creditors in the broad general sense of persons whose claims are grounded in contract or tort, or a penalty or forfeiture, to insure sustenance and a measure of economic security for the pensioner and his dependent family * * *.
In Fischer the court distinguished Hoffman v. Hoffman, 8 N.J. 157 (1952), in which it was held the wife could not reach pension funds, on the ground that Hoffman involved a group insurance contract which by its terms immunized the pension payments, whereas in Fischer "the determinative is the policy of the statute." (at p. 169). However in Thiel v. Thiel, supra, the Supreme Court whittled down Hoffman even further. In Thiel the court held that a pension payable under a group policy could be reached to provide alimony even though the policy 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." (41 N.J., at p. 449). The court said:
" Hoffman is distinguishable. In deciding that case, the Court conceived that relief should be denied because both husband and wife were nonresidents and the wife resided in a state wherein she could not obtain the relief she sought in New Jersey with respect to a contract so drawn. 8 N.J., at p. 165, 28 A.L.R. 2 d 1205. It is sufficient to note that the New Jersey wife in the present case seeks recourse to the only asset of her husband with a situs in New Jersey, i.e., the pension fund. In such case our ...