Simon, Marguerite T., J.s.c.
Plaintiff husband brings this motion seeking to terminate his obligation to pay alimony to defendant pursuant to a judgment of divorce entered September 6, 1974. Defendant wife brings a cross-motion for enforcement of the judgment.
At the time of the entry of the final judgment, plaintiff was employed as an ordained minister earning approximately $12,000 a year. The parties entered into a consensual agreement which was incorporated into the judgment. Two pertinent stipulations of the agreement are as follows: (1) "Said alimony of $500 per month shall continue in effect regardless of the effect of earnings of either party in the future." (2) "The husband shall pay to the defendant counterclaimant in lieu of her rights to the plaintiff's pension, the sum of $6,000.00. . . ." The judgment recited that the court was convinced that the stipulations were fair and just under all circumstances.
Now, 12 years later, plaintiff is 62 and defendant is 64. Both parties appear to be in poor health and without substantial assets. Prior to plaintiff's retirement in August 1986, he was receiving $20,500 ($1,708.34 a month) in his position as pastor. He now recieves $629 a month social security pension and $1,500 a month pension from his former employment giving him a total of $2,129 a month. Defendant wife has not worked since the entry of the judgment of divorce and her sole income
is the $500 a month alimony and a social security pension of $348.
By this motion, plaintiff argues that since defendant waived her pension rights as part of equitable distribution, none of his pension benefits can be considered as income for continuation of alimony. With this premise he states that he would be paying 80% of his income from social security if alimony were to continue at the present rate. Plaintiff relies on D'Oro v. D'Oro, 187 N.J. Super. 377 (Ch.Div.1982), aff'd 193 N.J. Super. 385, (App.Div.1984), as controlling. There the court considered the following question:
Once a "present value" of a pension is equitably distributed, and the nonpensioner receives her share in immediate cash, and the pensioner's share is deferred, specifically "leaving all pension benefits to the employee himself," can his monthly pension benefits upon his retirement be included in an income base for purposes of re-establishment of alimony? [187 N.J. Super. at 378]
According to plaintiff, any consideration of his $1,500 monthly pension benefits would amount to "double dipping" and be invalidated under D'Oro, supra.
The Appellate Division, in affirming Judge Krafte's decision, commented that they were not determining if enhancement of a pension by pensioner's earnings after termination of the marriage for equitable distribution purposes should be regarded as income for alimony purposes. 193 N.J. Super. at 387. That precise issue was never raised, for in D'Oro the application for modification occurred within ten months of the final judgment. Here the amount of time is substantial. Therefore, this case presents an issue of first impression in New Jersey regarding the consideration of a divisible pension approach. It can be noted that no cases have been found from other jurisdictions which might prove helpful.
The $1,500 a month pension of plaintiff husband is the result of many years of service. A portion of that monthly amount derives from accumulated service before the filing of
the complaint and a portion derives from accumulated service thereafter. Clearly, defendant has waived her right to the former and to permit its consideration as income for alimony purposes would amount to "double dipping." It is this court's position that the portion which accrued after the date ...