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Barba v. Barba

Decided: January 17, 1985.


On appeal from Superior Court of New Jersey, Chancery Division, Union County.

Morton I. Greenberg and Gaynor. The opinion of the court was delivered by Gaynor, J.A.D.


[198 NJSuper Page 207] In this matrimonial case, plaintiff-husband appeals from those portions of the judgment of divorce dealing with equitable distribution of marital assets, alimony and counsel fees. Specifically, plaintiff asserts that the court erred in effecting equitable distribution in such a manner that defendant received a greater percentage of the assets, in improperly computing the amount due on a second mortgage covering the marital residence

and the value of plaintiff's profit sharing plan, and erroneously including plaintiff's potential pension as an asset subject to distribution. He also contends the award of alimony was excessive in amount and duration and challenges the allowance of counsel fees to defendant. We agree with certain of plaintiff's contentions and are therefore constrained to reverse and remand for further proceedings consistent with this opinion.

The parties were married on November 21, 1948 and this action was commenced in September 1982 despite their having been separated since the latter part of 1976. Three children were born of the marriage, all of whom are now emancipated. The youngest son and his wife and child occupy a basement apartment in the marital residence and the eldest son resides in the home with defendant. Plaintiff suffers from a heart ailment but is employed full time earning a yearly gross salary of approximately $52,000. Defendant is also employed and earns a gross annual salary of $10,725. The married son pays rent of $200 a month to defendant and the other son pays her $40 a week for room and board. Since the separation, plaintiff has provided for support for defendant, initially in the amount of $500 per month and subsequently increased to $950 a month until April 1982 when he reduced it to $583 monthly.

The marital assets consist of the home, having an agreed market value of $65,000 and subject to two mortgages, a 1971 Dodge automobile valued at $1,500 and another 1978 Dodge valued at $2,300, an IRA account of plaintiff in the amount of $2,000, U.S. Savings Bonds totaling $7,300 and plaintiff's profit sharing plan having a market value of $23,922.25 and which allegedly was only 70-80% vested as of the date of the complaint. The disputed pension benefit was considered by the court to be a marital asset and was valued at $10,072.73. The parties' debts consisted of a $2,299 Visa balance, a Bamberger's account of $249 and a Sears account in the amount of $347, in addition to the two property mortgages. The balance owing on the first mortgage was $6,589.28 and the second mortgage was

a home improvement loan in the original principal amount of $9,000 which had been obtained in December 1981 to finance the cost of the basement apartment renovation. Neither party presented proof of the payoff figure on this loan as of the distribution date, but plaintiff stated that as of August 19, 1983 it was $8,523.06.*fn1 The payment schedule indicated that the remaining payments in September 1982 totaled $14,765.22. The court fixed the balance at $10,000.

Defendant presented expert testimony to establish the value of plaintiff's noncontributory pension and profit sharing plans. Under the terms of the pension plan, ten years of service was required for eligibility with normal retirement commencing at age 65. Early retirement at 55 years of age was available after 20 years of employment. Plaintiff's age was 56 at the time of the trial and he had commenced his employment with his present employer in January 1976. Defendant's expert calculated that by age 65 plaintiff would have worked 197 months and thus be entitled to a pension benefit of $866.94 per month. He considered that the 6.6722 years between plaintiff's start of employment and the filing date of the complaint comprised 40.6703% of the 197 work months required for pension benefits and, applying this percentage to the monthly payment, concluded that $352.53 per month could be attributable to the period of coverture. He then calculated that the present value of the $352.53 monthly benefit over plaintiff's life span would be $10,072.73. The expert conceded that if plaintiff left the company for any reason prior to the completion of ten years of service in January 1986 he would receive no benefit under the plan and also that the amount of any pension could be less if the company suffered economic reverses before plaintiff's retirement at age 65. The court accepted the expert's computation in valuing the pension as a marital asset.

The market value of plaintiff's profit sharing account as of December 31, 1982 was $23,922.25 of which 70% was then vested. It was calculated that $22,838.21 had been acquired during the marriage and that as of the distribution date plaintiff was vested in 70-80% of this amount.

In effectuating an equitable distribution of the marital assets, the court awarded the marital home to defendant, subject to the payment of the two mortgages, and the 1978 Dodge automobile. The IRA account, savings bonds, pension and profit sharing plans were awarded to plaintiff. Defendant was made responsible for the VISA account and plaintiff was required to satisfy the Bamberger's and Sears accounts. In making this distribution, the court considered plaintiff's pension and profit sharing plans as having the ascribed values of $10,072.73 and $22,838.21, with the result that plaintiff received assets having an approximate value of $43,000 with defendant receiving assets having a net value of about $47,700.

An alimony award of $1,000 a month to defendant was based upon her need and plaintiff's ability to pay, with consideration being given to her limited potential for more rewarding employment as well as the income received from her sons. The counsel fee of $2,910 allowed to ...

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