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DOCKET NO. A-1846-09T3







February 14, 2011


Submitted December 13, 2010 - Decided


Before Judges Sabatino and Alvarez.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1152-98.


William N. Phillips, appellant pro se.


Diana J. Phillips, respondent, has not filed a brief.


In this post-judgment matrimonial matter, defendant William N. Phillips appeals the Family Part's order dated July 17, 2009, insofar as paragraph six of that order requires the full amount of defendant's pension income to be applied to alimony arrears owed to defendant's former wife, plaintiff Diana J. Phillips. Defendant also appeals the Family Part's denials of his ensuing motions for reconsideration.

Because the Family Part's order is contrary to statutory garnishment limitations, and because the record is inadequate to justify the post-judgment treatment of defendant's pension as an asset in equitable distribution, we vacate the court's directive and remand for the entry of a corrective order that adheres to the pertinent statutory limits.

From the limited record supplied to us by the pro se appellant, it appears that the parties were divorced on May 26, 2000. As part of the terms of the divorce,1 defendant was apparently obligated to pay weekly alimony to plaintiff. Defendant subsequently remarried and relocated to South Carolina, where he resides with his present wife and three younger children. According to defendant's submissions, he retired from his employment in March 2008 and his sole present income is from Social Security retirement earnings and his former employer's pension plan.

By defendant's own admission, he failed to keep the alimony payments current, resulting in substantial arrears, which were tabulated by the Family Part at $17,332.00 as of July 31, 2009. As defendant's arrears mounted, plaintiff sought relief in the Family Part to enforce her rights of collection. She argued, among other things, that defendant had voluntarily caused his own financial constraints by transferring substantial assets to his present wife and by choosing to retire. Meanwhile, defendant moved, unsuccessfully, to reduce his alimony obligations, based upon an alleged change in circumstances.2

Following the motion practice, the Family Part issued the subject order dated July 17, 2009. Paragraph six of that order recites that "[e]ffective immediately, one hundred (100%) percent of [d]efendant's net monthly pension benefit with [his former employer], shall be allocated to [p]laintiff via a Qualified Domestic Relations Order ["QDRO"], to be utilized towards his ongoing alimony obligation, with the cost of the QDRO to be the sole responsibility of [d]efendant."

Defendant sought reconsideration of this provision, arguing that, in effect, the court was ordering a garnishment of the full amount of his pension income, despite the fact that federal and State statutes limit such garnishment at fifty percent for a person who is supporting a spouse or dependent children. In his initial oral ruling denying reconsideration, the Family Part judge characterized the pension as an asset subject to distribution. After a further submission by defendant, the judge again denied reconsideration in an order dated December 10, 2009.

The applicable federal statute defines earnings subject to the federal garnishment limitations to include "periodic payments pursuant to a pension or retirement program." 15 U.S.C.A. 1672(a). The statute further defines disposable earnings as "that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld." 1672(b). Furthermore, 1673(b)(2) prescribes that:

The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment to enforce any order for the support of any person shall not exceed


(A) where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), 50 per centum of such individual's disposable earnings for that week; and


(B) where such individual is not supporting such a spouse or dependent child described in clause (A), 60 per centum of such individual's disposable earnings for that week;


except that, with respect to the disposable earnings of any individual for any workweek, the 50 per centum specified in clause (A) shall be deemed to be 55 per centum and the 60 per centum specified in clause (B) shall be deemed to be 65 per centum, if and to the extent that such earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve-week period which ends with the beginning of such workweek.


[(Emphasis added).]


New Jersey statutes require adherence to these federal maximum limits upon garnishment. See N.J.S.A. 2A:17-56.9.

The Family Part erred in not applying these statutory limitations to the defendant's pension income. Although the Family Part characterized the pension as an "asset," there is nothing in the record before us that justifies a post-judgment redistribution of the parties' assets.

There are no proofs before us that refute defendant's contention that the pension is his own and that the revenues derived from his pension are presumptively his earnings, subject to the garnishment limitations set forth in the applicable statutes.3 See also Burstein v. Burstein, 182 N.J. Super. 586, 593-95 (App. Div. 1982); Ward v. Ward, 164 N.J. Super. 354, 363 (Ch. Div. 1978). We discern no basis for the Family Part judge to have ordered the post-divorce creation of a QDRO respecting the pension, as there is no reference in the record to any pension in the divorce judgment contemplating such a QDRO to be created at or before defendant's retirement. Moreover, there is no showing of fraud, unconscionability, or other extraordinary basis to alter the equitable distribution of property from the time of the divorce. See Miller v. Miller, 160 N.J. 408, 426 (1999).

Paragraph six of the order of July 17, 2009 is therefore vacated. The matter is remanded for the entry of a revised order, consistent with the garnishment limitations set forth in the applicable federal and state statutes.4 We do not retain jurisdiction.


1 We have not been furnished with a copy of the final judgment of divorce.

2 The present appeal is confined to the pension allocation and garnishment issues and does not concern the denial of defendant's motion to reduce the alimony.

3 Plaintiff has not participated in the present appeal.

4 We do not pass on whether defendant has adequately established that he is supporting his present spouse or any dependent children and, if not, whether the higher maximum garnishment limits set forth in 15 U.S.C.A. 1673(b)(2)(B) apply. Defendant may present such proofs of support and dependency to the Family Part on remand, subject to any competing proofs presented by plaintiff.