Fischer v. Fischer

Burling, J.

(dissenting). The question in this case is whether under the provisions of R. S. 43:16-7, as amended by L. 1941, c. 86, sec. 1; L. 1943, c. 77, sec. 1; L. 1944, c. 253, sec. 8; L. 1952, c. 358, sec. 6, a divorced wife may recover alimony payments by order of the Chancery Division of the Superior Court directed to the pension fund commission referred to in the act.

The problem is solely one of statutory construction. There is no consistency of formula in the various statutes of this state which prevent the reaching of pensions for the benefit of others than the pensioner. However, that is a matter for determination by the elected legislative representatives of the people. For instance, in some instances the exemptions refer specifically to’ debts. See L. 1948, c. 110, sec. 29; L. 1950, c. 173, sec. 8 (N. J. S. A. 43 :21—53, relating to temporary disability benefits), and R. S. 34:15-29 (workmen’s compensation claims and payments). Another statute, the Unemployment Compensation Law, refers to debts and then explicitly provides for vulnerability of the compensa *170 tion claim to “* * * debts incurred for necessaries furnished to such individual or his spouse or dependents during the time when such individual was unemployed.” (Emphasis supplied). R. S. 43:21-15 (N. J. S. A. 43:21-15 (c)).

The pertinent language of R. S. 43:16-7, as amended, supra, is:

“* * No moneys shall be paid out of the consolidated fund except upon the warrant of the commission, signed by its chairman and secretary. All pensions granted under this chapter shall he exempt from execution, garnishment, attachment, sequestration or other legal process. * * *” (Emphasis supplied.)

The above emphasized portion of the statute was added by L. 1944, c. 253, sec. 8, supra.

Statutory language, including the phraseology of amendatory acts, is to be given the generally accepted meaning unless the contrary intent is clear. R. S. 1:1-1; Grogan v. DeSapio, 11 N. J. 308, 323 (1953). The portion of B. 8. 43 :16-7, as amended, hereinabove quoted is not of doubtful meaning and therefore the doctrine of ejusdem generis is inapplicable. State v. Mundet Cork Corp., 8 N. J. 359, 366 (1952), cert. den. 344 U. S. 819 , 73 S. Ct. 14 , 97 L. Ed. - (1952); Ford Motor Co. v. N. J. Dept. of Labor and Industry, 5 N. J. 494, 503 (1950); Edwards v. Mayor, etc., of Borough of Moonachie, 3 N. J. 17, 23, 24 (1949).

The validity of the order from which the present appeal has been taken may be grounded in two elements of the pertinent exemption clause, R. S. 43:16-7, as amended, supra, namely (a) sequestration and (b) other legal process.

The majority opinion itself demonstrates that the writ of sequestration had its genesis in English equity and included orders to secure enforcement of Chancery decrees. The word “sequestration” as used in R. S. 43 :16-7 as amended, supra, includes the process referred to in the statute relating to alimony, R. S. 2:50-37. At the time L. 1944, c. 253, sec. 8, amending R. S. 43 :16-7, supra, was adopted, R. S. 2:50-37 as am. L. 1938, c. 235, sec. 1, provided that in alimony cases the appropriate court “* * * may award and issue process *171 for the immediate sequestration of the personal estate * * *” of the party charged with payment of alimony. The Legislature in enacting the 1944 amendment to R. S. 43:16-7, supra, was cognizant of existing statutory provisions. Had the Legislature desired to except alimony judgments from the operation of the exemption clause it would have used specific language to that effect. Compare Festervand v. Laster, 15 La. App. 159 , 130 So. 634 (Ct. App. 1930). The language of R. S. 43:16-1 et seq., does not specifically indicate any policy in favor of a divorced wife, but only (after death of the employee) in favor of the “widow and children” or dependent parents of the employee (R. S. 43:16-4).

As to the phrase “other legal process” in the exemption clause in the statute, it has been held that an exemption from process includes exemption from orders for the payment of alimony. Fx parte Smallbone, 16 Cal. 2d 532 , 106 P. 2d 873 , 131 A. L. R. 222, 223 (Cal. Sup. Ct. 1940). See also Re Irish, 51 Idaho 604 , 9 P. 2d 501 (Sup. Ct. 1932); Schooley v. Schooley, 184 Iowa 835 , 169 N. W. 56 , 11 A. L. R. 110 (Sup. Ct. 1917).

“Process” has been defined as “a writ, warrant, subpoena or other formal writing issued by authority of law,” and to include an order of the former Court of Chancery. In re Martin, 86 N. J. Eq. 265, 273-274 (Ch. 1916). “Legal” has been defined as “conforming to the law; according to law; required or permitted by law; not forbidden or discountenanced by law; good and effectual in law.” General Motors Acceptance Corp. v. Schwartz, 118 N. J. L. 25, 29 (Sup. Ct. 1937), affirmed on the opinion of the former Supreme Court 118 N. J. L. 563 (E. & A. 1937).

It is difficult to conceive language more comprehensive than that used in R. S. 43:16-7 as amended, supra. Patently it includes any order, writ or other formal writing required or permitted by law to be issued by a court of this state. The premise of the majority opinion writes words into the statute which do not expressly exist therein. This is foreign to the method whereby the Legislature has treated the *172 subject of exemption of pensions, namely to specifically designate the exception from the exemption.

For the reasons herein expressed I would affirm the judgment of the Superior Court, Appellate Division.

Waci-ieneeld, J., concurs in this dissent.

For reversal—Chief Justice.• Vanderbilt, and Justices Iíeiier, Oliphant, Jacobs and Brennan—5.

For affirmance—Justices Wacheneeld and Burling—2.