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Cashin v. Cashin

Decided: July 2, 1982.

EDITH CASHIN, PLAINTIFF,
v.
HARRY F. CASHIN, DEFENDANT



Sorkow, J.s.c.

Sorkow

This is a post-judgment motion seeking an order that would serve to garnish 55% of defendant husband's wages to satisfy counsel fees awarded to plaintiff wife in the judgment of divorce.

Plaintiff's counsel has, to the date of this motion, been unsuccessful in collecting his fee. An order for supplementary proceedings in aid of execution issued on April 20, 1982, pursuant to R. 4:59-1(e).

At those proceedings it was ascertained that defendant was a member of the International Longshoreman's Association, had been steadily employed for the past three years, earned a gross salary of $500 a week, excluding overtime, and that for the week just prior to the defendant's deposition, he earned a net take home pay of $386.

Following that deposition, plaintiff's attorney made application for a wage execution to issue against defendant's wages at a rate of 55% a week in satisfaction of the judgment for counsel fees. Defendant registered a timely objection and, pursuant to R. 4:59-1(d), the matter is now before this court.

Defendant objects to the execution being sought for two reasons. The first objection raised is a factual one, wherein defendant alleges that he does not have the financial ability to pay the counsel fee awarded. The court notes that defendant raised this same objection both prior to and immediately following the original award of counsel fees at the time of trial. The

court was not persuaded by defendant's plea of poverty then and remains unpersuaded today.

The court now turns to defendant's second and somewhat more complex objection. He challenges the percentage rate at which plaintiff wife is seeking to garnish his wages. He argues that the exceptional rate of 55% requested by petitioner is reserved for awards of support under 15 U.S.C.A. § 1673(b) and not for an award of counsel fees. In response to this position plaintiff's attorney argues that the counsel fee awarded is in essence an award for support and thus subject to the exceptional 55% garnishment rate created by 15 U.S.C.A. § 1673(b).

A brief review of the controlling federal and state legislation is appropriate for purposes of clarification. 15 U.S.C.A. § 1673(a) places a general ceiling on the amount of disposable weekly earnings which are subject to garnishment. The statutory ceiling is fixed as the lesser of either 25% of the disposable weekly earnings or the amount by which the disposable weekly earnings exceed 30 times the federal minimum hourly wage. This general ceiling, however, is subject to certain exceptions found in 15 U.S.C.A. § 1673(b).

One such exception applies to garnishments issued to satisfy orders of support. In place of the lesser rate of 25%, 15 U.S.C.A. § 1673(b) imposes a greater wage garnishment rate of 55% for such orders. This exception is made binding on state courts under 15 U.S.C.A. § 1673(c) and, in fact, is implemented in the State of New Jersey via N.J.S.A. 2A:17-56.1. From this review it is clear that New Jersey courts have the authority to enforce orders of support by garnishment of a defendant's wages at the rate of 55% a week. See, also, Burstein v. Burstein, 182 N.J. Super. 586 (App.Div.1982).

The present inquiry, however, is whether the counsel fee awarded to plaintiff's attorney under the final judgment of divorce is in the nature of a support obligation, thus subject to the 55% wage ...


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