D'Oro v. D'Oro
| Decision Date | 07 February 1984 |
| Citation | 474 A.2d 1070,193 N.J.Super. 385 |
| Parties | Annette M. D'ORO, Plaintiff-Appellant, v. Frank J. D'ORO, Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Chase & Chase, Hackensack, for plaintiff-appellant (Seymour Chase, Hackensack, on the brief).
Messineo & Messineo, Ridgewood, for defendant-respondent (Rose Marie C. Schutt, Ridgewood, on the brief).
Before Judges ARD, MORTON I. GREENBERG and TRAUTWEIN.
By a final judgment entered February 22, 1982 the parties to this action were divorced. The judgment of divorce made provision for equitable distribution of various assets including defendant's pension. It provided that the pension had a present value of $53,018 of which one-third of $17,675 was awarded to plaintiff. She received this award by way of adjustment in the division of the proceeds of sale from the family residence. The judgment also awarded plaintiff alimony. In October 1982 defendant filed a motion to be relieved of making alimony payments. Plaintiff then filed a cross-motion seeking enforcement of the alimony order. By a letter dated November 9, 1982 Judge Krafte advised the parties that defendant's motion was granted and plaintiff's denied since plaintiff's income exceeded defendant's. The court filed an opinion dated November 9, 1982 reported at 187 N.J.Super. 377, 454 A.2d 915 (Ch.Div.1982) explaining the reasons for the decision. On November 24, 1982 the judge signed an order reflecting this decision. Plaintiff subsequently moved for an order reinstating alimony and fixing arrearages. By order entered January 11, 1983 this motion was denied. Plaintiff filed separate appeals from the orders of November 24, 1982 and January 11, 1983. By our order of February 28, 1983 we consolidated the appeals.
We affirm the orders of November 24, 1982 and January 11, 1983 substantially for the reasons set forth in the reported opinion by Judge Krafte at 187 N.J.Super. 377, 454 A.2d 915 (Ch.Div.1982).
We do, however, make certain additional observations as to what has not been decided in this action. It might well be argued that even though a pension is distributed to a pensioner, to the extent the pension is enhanced by the pensioner's earnings after the date of the termination of the marriage for equitable distribution purposes, the proceeds of the pension should be regarded as income for alimony purposes. But we do not reach this issue for two reasons. Firstly, plaintiff has not advanced an argument that the proceeds of the pension be divided in such a manner between income and asset distribution. Secondly, assuming that the marriage was terminated for equitable distribution purposes as of the date of the filing of the complaint, see Brandenburg v. Brandenburg, 83 N.J. 198, 209-210, 416 A.2d 327 (1980), the time for possible enhancement of the pension by defendant's post-divorce earnings would be quite limited. While the record does not show the date of the complaint, defendant...
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