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Innes v. Innes

Decided: May 31, 1988.

FRANK T. INNES, PLAINTIFF-APPELLANT,
v.
NITA L. INNES, DEFENDANT-RESPONDENT



On appeal from Superior court of New Jersey. Chancery Division, Family Part, Morris County.

Furman, Brody and Long. The opinion of the court was delivered by Brody, J.A.D. Long, J.A.D., concurring in part and dissenting in part.

Brody

[225 NJSuper Page 243] The parties were divorced in March 1984. Plaintiff was then 60 years old, and his wife 59. Their major assets were the marital home and their pensions. The judgment of divorce incorporating the terms of an agreement provided, among other things, that plaintiff pay defendant $650 a month alimony and, as her share of his pension, $19,000 less 40% of the value of her pension. The judgment further provided that the marital home be sold within a year and the proceeds divided equally. Plaintiff used a portion of his share of the proceeds from the sale of the home to pay defendant her net share of the value of his

pension. After these adjustments, she received approximately $75,000 of the proceeds and he received approximately $40,000.

Plaintiff was laid off from work in June 1985 and immediately moved for termination of alimony because he was no longer earning income. The trial court reduced his alimony payments from $650 to $550 a month, established arrearages in the amount of $3,600 and ordered him to pay $1,200 of defendant's attorney's fees. In reducing alimony by only $100 a month and establishing arrearages of $3,600, the trial judge found that plaintiff's monthly income was $1,502, consisting of $622 Social Security benefits, $720 pension payments, and $160 payments from an annuity that plaintiff had purchased with $24,000 of his share of the proceeds from the sale of the home.

The basic issue in this appeal is whether, for the purpose of determining alimony, the trial judge properly considered the payments plaintiff receives from his pension and from the annuity he had purchased with the proceeds of the sale of the marital home. Plaintiff contends that those payments are derived from his equitable share of the marital assets and therefore are not available to pay alimony. He relies on the holding in D'Oro v. D'Oro, 187 N.J. Super. 377 (Ch.Div.1982), aff'd 193 N.J. Super. 385 (App.Div.1984). We respectfully disagree with D'Oro.

D'Oro posed the question of whether pension payments to a husband who retired five months after the divorce should "be included in an income base for purposes of re-establishment of alimony[.]" Id. 187 N.J. Super. at 378. As here, the wife in D'Oro had received a portion of the value of the pension in a lump sum as part of the equitable distribution of marital assets, the preferred method of distributing a spouse's equitable share of the other spouse's pension. Kikkert v. Kikkert, 177 N.J. Super. 471, 477-478 (App.Div.1981), aff'd 88 N.J. 4 (1981). The court held that "it will be inequitable for plaintiff [wife] to be able to include his pension income twice for her benefit, first for a share of equitable distribution, and second, for inclusion in

his cash flow for determination of an alimony base." D'Oro, 187 N.J. Super. at 379. (Emphasis in original.) The court "left to another day" the question of whether pension payments may be considered as a basis for alimony " after such point in time as defendant [husband] has received his share of 'present value.'" Id. at 380. (Emphasis in original.)

There is surface appeal to the argument that a supporting spouse should not be required to pay a dependent spouse "twice" from the supporting spouse's pension. Kikkert encourages a lump sum payment to a spouse of the value of the other spouse's future pension payments in order to avoid prolonging contacts between divorced spouses. Kikkert, 177 N.J. Super. at 477-478. (That rationale is questionable in cases where an alimony award assures post-divorce contacts.) In the present case, plaintiff "advanced" to defendant the lump sum present value of his pension from his share of the proceeds of the sale of the marital home. Superficially, it seems unfair to require him to pay plaintiff part of his pension payments "again" as alimony.

The argument is unsound because equitable distribution and alimony are not the same. They are fundamentally different in one important respect:

[Equitable distribution to a wife] gives recognition to the essential supportive role played by the wife in the home, acknowledging that as homemaker, wife and mother she should clearly be entitled to a share of family assets accumulated during the marriage. Thus the division of property upon divorce is responsive to the concept that marriage is ...


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