Summary
In Wheeler v. Wheeler, 94 Atl. 85, not yet officially reported (Docket 32, p. 312) a bill for maintenance, Vice Chancellor Emery, in a memorandum, stated that he would advise a decree that the permanent alimony commence from the date of the filing of the bill.
Summary of this case from Swallow v. SwallowOpinion
02-03-1912
WHEELER v. WHEELER.
Guild & Martin, of Newark, for plaintiff. Alfred N. Dalrymple, of Newark, for defendant.
Petition for divorce by one Wheeler against Wheeler. On application for permanent alimony and counsel fees. Alimony and counsel fees allowed.
Guild & Martin, of Newark, for plaintiff. Alfred N. Dalrymple, of Newark, for defendant.
EMERY, V. C. Defendant's income from his salary is $150 per month, and from a veteran's pension $12 per month. The Pension Act (Rev. St U. S. § 4747 [Comp. St. 1913, § 9080]) provides that no money due or to become due to a pensioner shall be liable to seizure under any legal or equitable process, whether the same remains with the Pension Office, or any officer or agent thereof, or is in course of transmission to the pensioner, but shall inure wholly to the benefit of the pensioner.
It was contended that, by virtue of this section, the amount of the pension when received should not be considered in estimating the amount of his annual income. But Mcintosh v. Aubrey, 185 U. S. 122, 22 Sup. Ct. 561, 46 L. Ed. 834 (1901), the Supreme Court decision cited, settles that the exemption from liability to process protected the pension money only while retained in the Pension Office or in the course of transmission to the pensioner, and that the pension money, when received by the pensioner, was subject in his hands to liability to process. The provision of the act that the pension "shall inure wholly to his benefit" was effectuated by the payment to him. Under this decision it seems clear that the amount of the pension money to be received may be taken into account in estimating the total income. The payment of the permanent alimony in this case is based wholly on the liability to contribute after receipt of his salary and pension.
The amount of permanent alimony to be paid hereafter from the date of the decree will be fixed at one-third of the defendant's income, including the pension, payable monthly from the date of the decree. I will also advise a decree that the permanent alimony commence from the date of filing the bill, and that the defendant pay the amount thus fixed up to the date of the decree, after deducting the amount paid under the order for temporary alimony. A counsel fee of $150 will also be allowed.