Matthews, Crane and Antell.
Plaintiff appeals from an order denying her application for a wage execution.
On December 14, 1973 defendant consented to an order which provided for $200 a month support to plaintiff, and required defendant to stay away from the marital premises without plaintiff's permission.
Plaintiff and defendant separated and the defendant left New Jersey. However, he continued to make the $200 payments through October 1975. No payments have been received since November of that year.
Plaintiff filed a notice of motion to enforce litigant's rights and an order reducing the arrears of $1,200 to judgment was entered on April 15, 1976. Since that date plaintiff has unsuccessfully attempted to collect support from defendant. Defendant is presently retired from the Air Force and living in Massachusetts. He receives an Air Force retirement pension each month, but steadfastly refuses to provide any support whatsoever.
Plaintiff then attempted to arrange for a garnishment of the retirement pay of defendant under the provisions of 42 U.S.C.A. § 659 (PL. 93-647). The judgment was docketed in the Superior Court of New Jersey pursuant to N.J.S.A.
2A:4-19.1, and a notice of motion of application for wage execution was served. Defendant failed to respond in any manner and an application for order of wage execution was made to the Law Division. The trial judge rejected the application because of his belief that R. 4:59-1 "does not cover this matter." We reverse.
Plaintiff clearly has a right under statute to apply for and receive a writ of execution on a money judgment, even if that judgment was based upon accumulated arrears due to nonpayment of a support order. Savoie v. Savoie , 26 N.J. Misc. 67 (Ch. 1947); Duffy v. Duffy , 19 N.J. Misc. 332 (Ch. 1941); Joseph Harris & Sons, Inc. v. Van Loan , 23 N.J. 466 (1957); Welser v. Welser , 54 N.J. Super. 555 (App. Div. 1959).
R. 4:59-1(a) states, in pertinent part:
In Joseph Harris & Sons, Inc. v. Van Loan , above, the court clarified the operation of these standards in matrimonial causes where the amount of arrearages on an order for alimony and support had been fixed and entered upon the civil docket under N.J.S.A. 2A:16-18, and 19. There the trial judge had entered an order fixing arrearages due on a previous order for alimony and support, in the amount of $965.60. Plaintiff then entered the order on the civil docket under N.J.S.A. 2A:16-18 and proceeded to apply for a writ of execution. The Law Division quashed the writ and plaintiff appealed.
The Supreme Court reversed, observing that N.J.S.A. 2A:16-18 was merely the codification of a long line of earlier statutes relating to the creation of liens to aid in the ...