January 14, 2013
EDUCAP, INC., PLAINTIFF-APPELLANT,
SHADWIN WILLIAMS, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-4158-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2012
Before Judges Yannotti and Harris.
Plaintiff Educap, Inc. appeals from an order entered by the Law Division on April 13, 2012, which denied its motion pursuant to N.J.S.A. 2A:17-64 to require defendant Shadwin Williams (Shadwin) to pay certain monies out of his income to satisfy a judgment. We reverse.
This appeal arises from the following facts. Plaintiff made a student loan to Jaycee Williams (Jaycee), which was co-signed by her parents, Shadwin and Annie Williams. When Jaycee defaulted on the loan, plaintiff brought suit and a final judgment was entered on March 30, 2010, against defendants in the amount of $28,774.16.
In January 2012, plaintiff filed a motion pursuant to N.J.S.A. 2A:17-50(a) for a wage execution against Jaycee. Jaycee opposed the application in part. In a letter to the court dated January 20, 2012, Jaycee stated that she had been unable to pay the amount of $320 per month that plaintiff had insisted upon. She asserted that she could only afford to pay $50 per week from her weekly salary. After Jaycee provided the court with additional information concerning her income and expenditures, the court entered an order dated March 7, 2012, allowing an execution upon Jaycee's wages in the amount of $50 per week.
On March 14, 2012, plaintiff filed a motion pursuant to N.J.S.A. 2A:17-64 for an order requiring Shadwin to pay monies out of his income to satisfy the judgment. According to the certification of plaintiff's attorney, Jeffrey H. Ward (Ward), $26,879.16 remained due and owing on the judgment. Ward said that Shadwin had completed an information subpoena, which indicated that he was employed in New York and was earning a gross weekly salary of $675. Plaintiff sought an order requiring Shadwin to pay $67.50 per week until the judgment was satisfied.
Shadwin opposed the motion. In a letter dated April 2, 2012, he stated that it was "unclear" what plaintiff was seeking, since Jaycee had already been ordered to pay $50 per week to satisfy the judgment. Shadwin said he did not understand the legal complexity of the matter. He asked for the court's "kind and timely intervention" in the matter since it was posing a "serious hardship" upon him and his family.
The court placed the reasons for the order on the record. The court acknowledged that defendants were jointly and severally liable for the judgment. The court noted that they resided together, and Jaycee was already paying $50 per month out of her income to satisfy the judgment. The court stated that it was "satisfied that the equities require" denial of plaintiff's motion. The court entered an order dated April 13, 2012, denying plaintiff's motion. This appeal followed.
Plaintiff argues that the trial court erred by refusing to order Shadwin to pay a portion of his earnings to satisfy the outstanding judgment. We agree.
"There are two ways that a judgment creditor can reach a debtor's wages to satisfy a judgment against the debtor. He may proceed by wage execution, N.J.S.A. 2A:17-50 to -56 or by an order for installment payment pursuant to N.J.S.A. 2A:17-64." Iqbal v. Mucci, 371 N.J. Super. 65, 68 (App. Div. 2004) (citing Household Fin. Corp. v. Clevenger, 141 N.J. Super. 53, 56 (App. Div. 1976)). An order for installment payments entered pursuant to N.J.S.A. 2A:17-64 is directed towards the debtor, whereas a wage execution order entered pursuant to N.J.S.A. 2A:17-50(a) is levied upon the debtor's employer. Ibid. (citing Clevenger, supra, 141 N.J. Super. at 56).
The wage execution statute permits a judgment creditor to apply to the court and, "where any wages . . . are due and owing to the judgment debtor . . . to the amount of $48 or more a week" then, "upon satisfactory proofs, by affidavit or otherwise, of such facts, the court shall grant an order directing that an execution issue against the wages . . . of the judgment debtor." N.J.S.A. 2A:17-50(a). Once the judgment creditor submits the required proofs, the trial court has no discretion and must issue the requested wage execution. Greate Bay Hotel & Casino v. Guido, 249 N.J. Super. 301, 304 (App. Div. 1991).
Here, however, plaintiff did not seek a wage execution under N.J.S.A. 2A:17-50(a), presumably because Shadwin was employed in New York. Plaintiff therefore sought an order pursuant to N.J.S.A. 2A:17-64, requiring Shadwin to pay the judgment debt in installments out of his earnings. N.J.S.A. 2A:17-64 provides that if a judgment debtor is entitled to an income or any property or money or things in action, or rights and credits, including such income as is derived from federal, state, county, municipal or other governmental sources, but not income or property as is recovered or exempt by law, the superior court may direct the judgment debtor to make payments at stated periods in installments, and upon such terms and conditions as the court may direct, out of the same, on account of the unsatisfied judgment. . . .
Plaintiff argues that where, as here, a judgment creditor seeks installment payments out of the debtor's wages, the court does not have discretion to deny the application, provided the creditor presents proof of the unsatisfied judgment. Plaintiff contends that the trial court in this case would have been required to enter a wage execution order if such an order had been requested.
We need not resolve the question of whether a court has discretion to determine whether to enter an installment payment order pursuant to N.J.S.A. 2A:17-64, if the judgment creditor submits proof of the judgment and the debtor's liability. Assuming that the court does have some discretion under the statute, we are satisfied that the court mistakenly exercised that discretion in denying the relief sought here.
In its decision, the trial court explained that an order requiring Shadwin to make installment payments on the judgment was not warranted here because a wage execution order had previously been issued with respect to Jaycee's wages. However, it is undisputed that Shadwin is jointly and severally liable on the judgment. The execution against Jaycee's wages has no bearing upon whether Shadwin should also be required to pay a portion of his wages to satisfy the judgment.
In Iqbal, the judgment debtor sought an order pursuant to N.J.S.A. 2A:17-64 requiring the judgment creditor to pay a judgment in installments from wages he was receiving. Iqbal, supra, 371 N.J. Super. at 66. A wage execution had previously been entered against the debtor, requiring that he pay twenty-five percent of his wages to his ex-wife and children. Ibid. We held that, an order for installment payments of the judgment could not be entered where the debtor was already subject to the wage execution order. Id. at 69. Iqbal has no application here, because the wage execution order was entered against Jaycee, not Shadwin.
In its decision, the trial court also stated that it would be inequitable to require Shadwin to pay a portion of his wages to satisfy the judgment. The court observed that Jaycee continued to reside with her parents and was paying $50 per week on the judgment. In his letter to the court opposing plaintiff's application, Shadwin stated that the court should intervene because this dispute was causing "serious hardship" to the family.
However, Shadwin provided no factual basis for any conclusion that it would be a hardship if he were required to pay a portion of his wages to satisfy the judgment. Accordingly, there is no support in the record for the court's finding that "the equities" required denial of plaintiff's motion.
Therefore, the trial court's order of April 13, 2012, is reversed, and the matter is remanded for entry of an order requiring Shadwin to pay plaintiff weekly installments of $67.50 until the judgment is paid.
Reversed and remanded to the trial court for entry of the order required by this opinion.
© 1992-2013 VersusLaw Inc.