Collester, J.J.D.R.C. (temporarily assigned).
The parties were divorced in 1958, and an interspousal agreement provided for payment of alimony in the amount of $300 a month. Judgment for specific performance of the agreement was granted to plaintiff wife in May, 1977. Arrears have been reduced to judgment in the amount of $2,700 with $90 in costs, and additional arrearage exists because defendant has not made any subsequent payments.
Defendant is a retired executive from the Mobil Oil Corporation and now lives in Texas. He receives monthly payments in the amount of $1,045.90 pursuant to the pension plan administered by Metropolitan Life Insurance Company. There is no dispute that there exist no assets in the State of New Jersey upon which plaintiff can enforce her rights except the pension plan benefits.*fn1
Plaintiff obtained a writ of execution on her judgment and served it upon Metropolitan in an effort to levy upon the rights and credits due defendant from the pension plan. Metropolitan resisted the levy, and plaintiff now seeks an order compelling Metropolitan to satisfy her judgment from defendant's pension fund as well as to deduct and pay her directly the amount of defendant's alimony obligation from each prospective monthly pension payment due defendant. Metropolitan and defendant contend that the applicable law prohibits such relief.
Mobil Oil Corp., an employer engaged in interstate commerce, adopted a pension plan consistent with the requirements of the Federal Employee Retirement Income Security Act of 1974 (hereafter ERISA). The plan qualifies as a tax qualified pension plan under § 401(a) of the Internal Revenue Code and is governed as an "employee benefit plan" under ERISA. 29 U.S.C.A. § 1002(3). The pertinent paragraph of the Mobil Plan reads as follows:
It is a condition of this Plan that funds accumulated hereunder, benefits derived from them and rights to benefits accruing under this Plan shall not be assignable or subject to garnishment, attachment, execution or levy or [sic] any kind except to the extent permitted by ERISA or other applicable law.
Benefits payable under an employee benefit plan subject to ERISA may not be assigned or alienated, ERISA § 206(d)(1), 29 U.S.C.A. § 1056(d)(1); 26 U.S.C.A. § 401(a)(13). While plaintiff concedes the applicability of the ERISA, she argues that the restriction against alienation and assignment of benefits prohibits only voluntary transfers and that involuntary transfers through garnishment and execution are not prohibited.
However, an examination of the statutory language, legislative history and administrative interpretation leads to the conclusion that Congress did not intend to prevent only voluntary transfers. A statutory exception is made to the general prohibition against alienation and assignment for a
"voluntary and revocable" assignment of up to 10% of any benefit payment, 26 U.S.C.A. § 401(a)(13) and it would follow that there would be no necessity for such a stated exception if the general prohibition applied only to voluntary assignments. Moreover, the House Conference Committee Report states that for purposes of this limited exception a garnishment or levy is not considered a voluntary assignment. H.R. Rep. No. 533, 93rd Cong., 2 Sess., reprinted in 1974 U.S. Code Cong. & Admin. News , pp. 4639, 5061.
Finally, applicable Treasury Department Regulations specify that the qualified pension plan benefits "may not be anticipated, assigned (either at law or in equity), alienated or subject to attachment, garnishment, levy, execution or other legal or equitable process." 26 C.F.R. § 1.401(a)-13(b) (1978).
However, rejection of plaintiff's argument that involuntary assignments are permissible under ERISA does not dispose of the issue in this case. There remains the question as to whether the statutory restriction was intended to ...