Saunders v. Saunders , 243 Wis. 94 ( 1943 )

Action commenced July 31, 1941, by Ida Saunders against William A. Saunders for a divorce. From an amended judgment entered July 25, 1942, the defendant appeals.

On August 14, 1941, a judgment was entered granting the plaintiff a divorce from bed and board. Plaintiff was awarded custody of a minor child, then aged twelve, and defendant was ordered to pay certain amounts for alimony and the support of the minor child. On July 25, 1942, upon an order to show cause the judgment was modified so as to lower the amount of alimony and direct that the payments for alimony and support should be paid out of the pension money due to the defendant out of the retired firemen's pension fund by the city clerk of Ashland directly to the clerk of the court for the plaintiff. Defendant appeals from this amended judgment. The trial court ordered the city clerk to pay the pension money owing to the appellant directly to the clerk of the court to be paid to the respondent to satisfy her claims for alimony and for the support of the minor child. Regardless of the merits of respondent's claims, no fact giving the court jurisdiction to make this order to the city clerk has been shown, and it is considered that the order to said clerk was outside of the jurisdiction of the court. This is not an attempt on the part of respondent to proceed under sec. 304.21, Stats.

Appellant relies on sec. 62.13(9)(d), Stats., which is the exemption clause in the pension law. It is considered that this provision is not applicable in the instant case. See 11 A.L.R. 123; 106 A.L.R. 669. A pension of this sort is as much for the benefit of the family and dependents of the pensioner as it is for him, and their claims cannot be defeated by relying on the exemption clause. See Hodson v. New York CityEmployees' R. System, 243 App. Div. 480,278 N.Y. Supp. 16. The amount of the alimony has been re-examined by the trial judge who has indicated as clearly as he properly can the fund out of which it is to be paid.

By the Court. — Judgment reversed so far as the city clerk is concerned, and affirmed in other respects.