On appeal from a Final Administrative Determination of the Board of Trustees of the Police and Firemen's Retirement System.
Antell, Havey and Brochin. The opinion of the court was delivered by Brochin, J.s.c. (temporarily assigned).
This is an appeal from a final administrative determination of the Board of Trustees of the Police and Firemen's Retirement System. We are called upon to answer the question whether N.J.S.A. 43:16A-17, which protects the retirement pension of a member of the System from garnishment, attachment or assignment, bars the Board of Trustees from paying a portion of a monthly pension directly to the pensioner's divorced wife to satisfy a divorce judgment which mandates equitable distribution to her of that part of the pension which was earned during the marriage. We hold that the statute is not a bar.
Joanne R. Cleveland and Thomas Cleveland were married for 23 years. Mr. Cleveland was a policeman employed by the Police Department of the City of Plainfield. During his employment,
he was a member of the New Jersey Police and Firemen's Retirement System.
Mr. and Mrs. Cleveland were divorced on March 6, 1985, before Mr. Cleveland's retirement. The judgment of divorce, which was entered with the consent of both parties, contained a provision which "ordered that upon [Mr. Cleveland's] retirement, the administrator of the New Jersey Police & Firemen's Retirement System pay directly to [Mrs. Cleveland] until the date of [Mr. Cleveland's] death, a sum. . . ." which was to be determined in accordance with a formula intended to give Mrs. Cleveland half of the pension benefits which had accrued during their marriage. The parties have stipulated that this provision was intended as part of the equitable apportionment of marital assets. See N.J.S.A. 2A:34-23.
The Board of Trustees of the Police and Firemen's Retirement System was not a party to the divorce action and therefore is not bound by the judgment. However, on March 15, 1985, Mrs. Cleveland wrote to the Division of Pensions, enclosing a copy of the divorce judgment. The pension administrator was asked to retain the judgment "for your records so that payments pursuant to these provisions can be made to the alternate payee, Joanne Cleveland, at the time of Mr. Cleveland's retirement." The Division of Pensions replied:
Please be advised that we will not be able to honor that court order in its present form. N.J.S.A. 43:16a-17 prohibits the levying or execution of any court order against the pension funds of a member of the Police and Firemen's Retirement System. The New Jersey Attorney General's office has advised us that the only exception to those provisions would be where a valid court order specifically mandates the Division of Pensions to withhold a specific sum from the member's monthly retirement allowance and such withholding is specifically characterized as alimony or support payments only. Equitable distributions were not included in such exceptions. Since the withholdings requested in the court order appear to be for equitable distribution purposes and are not specifically mentioned as being for alimony or support, we will not be able to enforce such court order unless the language therein is amended to indicate that the withholding is for alimony or support.
Following Mr. Cleveland's retirement on July 1, 1986, he began receiving pension benefits of $1,592.50 per month. Mrs.
Cleveland claims that her former husband did not make any payments directly to her, and she again asked the Division of Pensions to comply with the provisions of the divorce judgment. The Division of Pensions reiterated its refusal. Mrs. Cleveland appealed to the Board of Trustees of the Police and Firemen's Retirement System and the Board affirmed the determination by The Division of Pensions.
At Mrs. Cleveland's request, the matter was then transferred to the Office of Administrative Law. At the direction of the administrative law judge, notice of the proceeding was given to Mr. Cleveland, inviting him to intervene. However, he did ...