Halpern, Larner and King. King, J.A.D.
This is an appeal from a final determination of the Board of Trustees of the Police and Firemen's Retirement System (Board), N.J.S.A. 43:16A-1 et seq. , denying appellant widow's survivor benefits. We are required to apply the statutory definition of "widow" to an unusual and undisputed factual situation.
Appellant was married to Francis Lyons in 1944. In 1947 Lyons joined the Newark Police Department and enrolled in the Police and Firemen's Retirement System. Lyons retired on July 1, 1975. He and appellant were divorced on August 25, 1975. They remarried on March 16, 1976 and 11 days later Lyons died. Appellant's application for widow's survivor benefits was denied by the Board on the ground that she was not a widow as defined by the statute. The statute defines widow as follows:
"Widow" shall mean the woman to whom a member or retirant was married at least 5 years before the date of his death and to whom he continued to be married until the date of his death and who has not remarried. [ N.J.S.A. 43:16A-1(24)]
The key phrase for construction is "continued to be married." Appellant contends the phrase is vague and ambiguous and should be construed to allow her entitlement to survivor's benefits under these facts. The Board contends the restrictive definition is clear and in order to qualify as a widow the claimant spouse must be in a continuous marriage relationship with the retiree for at least five years preceding the date of the retiree's death. The Legislature's restrictive definition of "widow" was no doubt intended to protect the financial integrity of the pension fund. See
Chausmer v. Comm'r Emp. Retirem. Syst., Newark , 150 N.J. Super. 379 (App. Div. 1977); Reiser v. Passaic Cty. Pension Comm'n , 147 N.J. Super. 168, 187 (Law Div. 1976). This court has observed with respect to a pension statute that "[an] employee has only such rights and benefits as are based upon and within the scope of the provisions thereof." Matthews v. Irvington Bd. of Ed. , 31 N.J. Super. 292, 298-299 (App. Div. 1954). The Supreme Court in Geller v. N.J. Treasury Dep't , 53 N.J. 591, 597-98 (1969), in discussing the judicial treatment of pension legislation, stated, "Being remedial in character, statutes creating pensions should be liberally construed and administered in favor of the persons intended to be benefited thereby." As this court stated in Hillman v. Bd. of Trustees, etc. , 109 N.J. Super. 449, 455 (App. Div. 1970), "Our task is to give that language a fair and practical interpretation with reference to the purposes of the retirement act. Pension statutes are to be liberally construed to effectuate their remedial intent."
The statutory definition of widow in this factual context is vague. "Continue" may be defined as meaning to persist without interruption. However, it may also mean to resume after interruption or intermission. Webster's Third New International Dictionary (unabridged, 1971). The Board argues that the words "continued to be married" in the statute require a "continuous" marriage relationship for the five years preceding death. "Continuous" is defined essentially as uninterrupted. Webster's, supra. If the word "continuous" had been used in the statute there would be no need for judicial construction in this factual context but it was not.
The intermediate appellate court of California allowed survivor's benefits in Cavitt v. City of Los Angeles , 251 Cal. App. 2d 623, 59 Cal. Rptr. 690 (Ct. App. 1967), applying the principle that "pension statutes are to be liberally interpreted in favor of the applicant so as to effectuate, rather than defeat, their avowed purpose of providing benefits for the employee and his family." 59 Cal. Rptr. at 692. In the
course of its opinion the California court noted the distinction in meaning between "continued" and "continuously," remarking:
The words "continued married", as distinguished from the concept contained in the words "continuously married", may be construed to require only that the parties be married at the date of death rather than that the marriage in existence at the date of retirement must have been continuously in existence from its beginning at all times up to and including date of death. There is in this case a single widow and a single marriage. [ Id. 59 Cal. Rptr. at 693]
We hold that appellant in this situation satisfied the statutory requirement that she be a woman to whom retirant was married for at least five years before the date of his death and to whom he continued to be married until the date of his death. This result does not tend to impair the actuarial soundness of the pension system to which Lyons contributed for 28 years, during all of which years he was married to appellant. Nor does this result clash with the legitimate legislative purpose to discourage death-bed ...