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In re Petition of Singer Asset Finance Co.

May 14, 1998

IN RE: THE PETITION OF SINGER ASSET FINANCE COMPANY, L.L.C., FOR AN ORDER ALLOWING A TURNOVER OF BARRECA LOTTERY WINNINGS PURSUANT TO N.J.S.A. 5:9-13.


On appeal from Superior Court of New Jersey, Law Division, Mercer County.

Before Judges Landau, Collester, Jr.(t/a), and Bilder (t/a).

The opinion of the court was delivered by: Bilder, J.A.D. (retired and temporarily assigned on recall).

Argued April 20, 1998

This case involves the voluntary assignability of state lottery winnings. The sole issue is whether N.J.S.A. 5:9-13, a section of the State Lottery Law, N.J.S.A. 5:9-1 to 5:9-25, permits such assignments.

N.J.S.A. 5:9-13 provides:

No right of any person to a prize drawn shall be assignable, except that payment of any prize drawn may be paid to the estate of a deceased prized winner, and except that any person pursuant to an appropriate judicial order may be paid the prize to which the winner is entitled. The director shall be discharged of all further liability upon payment of a prize pursuant to this section.

On June 18, 1987 Caroline Barreca won a share in a prize of over two million dollars in the New Jersey Lottery. As such she became entitled to receive $63,500 each June for twenty years, i.e., until June 22, 2006. On November 7, 1996 Ms. Barreca entered into an agreement with petitioner Singer Asset Finance Company, L.L.C. in which she agreed to assign to Singer $50,000 of the payments due June 22, 1999 and June 22, 2000 in return for a present payment to her of $72,000. The agreement was conditioned upon the entry of a court order "directing the State Lottery to recognize [the agreement] and to make the Assigned Payments, without reduction or set off (other than income tax withholding), directly to [Singer]" and a "written acknowledgement from the State Lottery *** confirming that [Ms. Barreca] is the winner of [the assigned prize] and acknowledging the State Lottery's unqualified agreement to make all of the Assigned Payments to [Singer]."

Singer filed a petition in the Law Division in which it sought to proceed summarily for an order to allow the turnover of the assigned portion of Ms. Barreca's prize, an order which it characterized as an "appropriate judicial order" permitted by N.J.S.A. 5:9-13. Over the opposition of the Division of State Lottery, on February 14, 1997 the Law Division entered an order stated to be "entered pursuant to N.J.S.A. 5:9-13," requiring that Singer's assignee *fn1 be paid the assigned portion of the payments due to Ms. Barreca, ordering that taxes be withheld and credited to Singer's assignee, and requiring the Division of State Lottery to acknowledge in writing that it will unconditionally pay the lottery prize payments in accordance with the order. The Division appeals.

I.

The issue is strictly a question of statutory construction. In the only published opinion concerning this issue, McCabe v. Director N.J. Lottery Commission, 143 N.J. Super. 443 (Ch. Div. 1976), Judge Kimmelman examined N.J.S.A. 5:9-13 and noted that, as an exception to the statutory general rule making the prizes unassignable, the phrase "appropriate judicial order" must be strictly construed so as not to run counter to the general statutory prohibition against assignments. Id. at 447-448. Reading the phrase in context with the other exception, the death of the prize winner, he concluded that a court order sanctioning an assignment of winnings was limited to circumstances of necessity. Id. at 448. We agree.

Absent a clear indication to the contrary, language in a statute is to be read in accordance with its plain and ordinary meaning. Service Armament Co. v. Hyland, 70 N.J. 550, 556 (1976). Our duty is to construe and apply the statute as enacted. We are not at liberty to presume the legislature intended something other than what it expressed by its plain language. This Court will not engage in conjecture or surmise which will circumvent the plain meaning of the act. Gangemi v. Berry, 25 N.J. 1, 10 (1957). If a litigant is dissatisfied with the manner in which the Legislature has spoken, its recourse lies with that branch, not with this court. In Re Jamesburg High School Closing, 83 N.J. 540, 548 (1980). This is particularly true where, as here, there is no helpful legislative history. See Marotta v. Burgio, 185 N.J. Super. 172, 175-176 (Law Div. 1982).

As Judge Kimmelman correctly noted the disputed language must be read in the context of the whole phrase --

No right *** shall be assignable, except that payment *** may be paid to the estate of a deceased prize winner, and except that any person pursuant to an appropriate judicial order may be paid the prize to which the winner is entitled

-- and not extended beyond its reasonable bounds. He was applying a well established principle of construction which instructs that general words following specific words are to be construed to be limited by the preceding general words -- ejusdem generis. See Denbo v. Moorestown Twp., 23 N.J. 476, 481-482 (1957). Exceptions in a legislative enactment are to be strictly construed in a ...


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