On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Gloucester County, FM-08-8226-85.
Before Judges King, Axelrad and Holston, Jr.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 20, 2004
This matrimonial appeal involves the interplay of veterans' retirement benefits and veterans' disability in the context of a post-judgment enforcement action. Defendant Perry Whitfield ("husband" or"former husband") contends the trial court erred in determining that the State of New Jersey has the authority to treat as property divisible upon divorce military retirement pay waived by the retiree in order to receive the same amount in non-taxable veterans' disability benefits. We disagree with husband's characterization of the court's action. The Family Part judge required husband to compensate his former wife directly for the decrease in his pension occasioned by his voluntary election after the divorce. We are satisfied the court did not exceed its authority and acted within its power to enforce the equitable distribution award of the parties' final judgment of divorce.
The parties were married in l968. A short while later, husband entered the United States Air Force. The parties separated in l984, and were divorced on October 17, 1985. The judge who presided over the divorce trial found husband's anticipated military pension non-distributable to plaintiff Donna Whitfield ("wife" or"former wife") because it had not vested. On appeal, we held that husband's military pension was subject to equitable distribution. Whitfield v. Whitfield, 222 N.J. Super. 36, 39 (App. Div. 1987). We reversed and remanded the matter to the trial court to determine wife's percentile share of husband's pension using a two-step process. Id at 48. We instructed the court to first"factor out that portion of the pension attributable to the marriage" by establishing a fraction representing"the number of years the parties were married during which [husband] accrued pension credits over the number of years necessary for the pension to be received." Ibid. That number, referred to as the"coverture fraction," was 16/20. Ibid. The court was then to determine the percentage of the pension to which the wife was entitled by applying the standards established in Painter v. Painter, 65 N.J. 196 (1974). Ibid. Accordingly, if and when the pension was received, wife would be entitled to the ministerial distribution of the"[second-step]% of 16/20ths of the pension." Ibid.
A remand hearing to decide the amount of wife's equitable distribution share of husband's pension was held on September 29, 1988. Following the hearing, an order was not immediately entered. Husband began receiving his military retirement pension in November 1988. Through l993, he paid wife her purported equitably distributed share of this pension directly by personal check. On September 17, l993, upon wife's motion, the court finally entered an order memorializing the decision rendered at the remand hearing, amending the final judgment of divorce as follows:
[Wife] shall be entitled to receive directly from the appropriate payor 30% of [husband's] military pension together with any cost of living increase payable in connection therewith.
Neither party sought reconsideration nor appealed from this order.
The Department of Defense began making direct payments to wife in December 1993. At some undisclosed point, without the wife's knowledge, husband unilaterally elected, pursuant to federal law, to waive a portion of his military retirement pay and receive a corresponding amount of tax-free disability benefits for a leg injury he had received while on active duty.*fn1 The Department of Defense's direct payment of wife's equitable distribution share of husband's military retirement pay was accordingly reduced.
From 1993 to 2000, various motions were filed by both parties. In April 2000, husband filed a motion seeking a resolution of child support arrears and other financial issues unrelated to his pension. Wife filed a cross-motion, seeking to compel husband to disclose the gross monthly amount of the pension he had received from the military in order to determine whether she had received thirty percent of his gross pension as had been ordered in September 1988. In his response, for the first time since the entry of the order allocating wife's share of his pension, husband asserted wife was only entitled to thirty percent of the marital coverture fraction, not thirty percent of his gross pension. The motion judge agreed, and entered orders on June 30 and September 20, 2000, voiding the 1993 order and awarding wife"30% of the coverture fraction which is 80% of [husband's] gross pension... together with any cost of living increase."
Wife appealed and argued it was error to modify the 1993 order. For the first time on appeal, husband apparently argued that his former wife was not entitled to thirty percent of his gross pension because the Uniform Services Former Spouses' Protection Act ("USFSPA"), 10 U.S.C.A. § 1408, enacted in 1982, precluded the division of retirement pay that was waived in order to receive a veterans' disability benefit.
We determined that the intent of the trial judge at the time of the divorce was to award wife 37.5% of the coverture fraction of 16/20 (80%), which is thirty percent of husband's gross pension. Whitfield v. Whitfield, No. A-000730-00T1 (App. Div. January 17, 2002). In other words, wife had a 37.5% equitable interest in 16/20ths or 80% of husband's pension. We reversed and remanded the matter to the trial court to calculate the arrearage based on this formula. We expressly declined to address the USFSPA issue because it had not been raised below and husband had not filed a cross-appeal. The Supreme Court denied certification on April 25, 2002. Whitfield v. Whitfield, 172 N.J. 180 (2002).
Wife then filed an enforcement action seeking a judgment of $28,193.01 plus interest, representing the deficit through December 31, 2002. She based her calculation on thirty percent of husband's gross monthly pension of $2,429.00, which was his current pension as confirmed in a June 7, ...