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RICHARD F. MORENO v. PATRICIA E. MORENO


MORENO v. MORENO


FEBRUARY 11, 1997
Record No. 0972-96-4

RICHARD F. MORENO

v.

PATRICIA E. MORENO

Dennis J. Smith, Judge
Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Alexandria, Virginia

OPINION BY JUDGE JOHANNA L. FITZPATRICK
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Alan M. Winterhalter (Alan M. Winterhalter & Associates,
P.C., on brief), for appellant.

(Carl P. Horton, on brief), for appellee. Appellee submitting on
brief.


Richard F. Moreno (husband) appeals the decision of the trial
court denying a request to terminate his spousal support
obligation to Patricia E. Moreno (wife). He contends that the
trial court erred in using income from his previously divided
government pension as a source of funds to pay spousal support.
Finding no error, we affirm the judgment of the trial court.

I. BACKGROUND

The facts of this case are not in dispute. The parties were
married in 1970, separated in 1990, and divorced in 1992. The
final decree of divorce, entered June 15, 1992, incorporated the
parties’ property settlement agreement (Agreement). Included in
the Agreement were provisions requiring husband to pay spousal
support and provisions distributing the marital portions of
husband’s pensions.[1]

Eighteen months prior to husband’s mandatory retirement age of
sixty years, husband voluntarily retired and received a $25,000
buy-out from his employer. At the time of his retirement, husband
was living in Thailand and was a career employee of the United
States government. He has since remarried, become a permanent
resident of Thailand, but is prohibited by law from working in
that country. Upon his retirement, husband’s employer began
making the pension payments as required by the Agreement.

On October 13, 1995, more than a year after his retirement,
husband filed a motion to terminate spousal support. The trial
court heard the motion on March 20, 1996. Husband argued that the
only income source for making his spousal support payments since
his retirement was his pension income and interest earned from
savings. Additionally, he argued that because he could not
lawfully work in Thailand, he was unable to earn any supplemental
income and none could be imputed to him. He admitted that when he
reached age sixty shortly after trial, he would begin to receive
an additional pension from the U.S. Army, which also would be
divided pursuant to the provisions of the Agreement.

Wife testified that her need for spousal support had not
diminished. Her income was limited to her salary, the spousal
support paid by the husband of $2,600 per month, and her share of
the husband’s pension. Wife further testified that her expenses
included the mortgage payments she paid on the parties’ former
marital home, upkeep of the home, medical care for herself and
her daughter, as well as financial support for her daughter. The
court denied wife’s motion to require husband to pay a portion of
the mortgage payment if it terminated spousal support, finding
that it "had no power to modify this provision of the
PSA."

At the conclusion of the hearing, the court found as follows:

[B]oth parties’ testimony was credible[,] . . . the
[husband] did not retire earlier than his mandatory
retirement age for an improper purpose. . . . [T]he
[husband's] retirement from government service did not
preclude his earning income from other sources. . . . [T]he
[husband] . . . chose[] to settle abroad in a country where
the cost of living is substantially lower.

The court additionally found that husband "voluntarily
chose to stay in Thailand and, accordingly, retired in a place
which did not allow him to work[,] . . . thus preclud[ing] the
[c]ourt from imputing income to him." The court denied
husband’s motion to terminate spousal support, but found that
"there had been a change in circumstances to warrant a
reduction in the spousal support from $2,600 per month to [$800] per month, beginning April 1, 1996. The [c]ourt determined the
amount of the award based on the testimony as to the approximate
split of the [husband's] Army pension and the other
evidence." [2]

II. STANDARD OF REVIEW

"Whether spousal support should be paid is largely a
matter committed to the sound discretion of the trial court,
subject to the provisions of Code ? 20-107.1." McGuire
v. McGuire
, 10 Va. App. 248, 251, 391 S.E.2d 344, 346 (1990).
Although the decision to award spousal support rests within the
trial court’s discretion, "’such discretion is not absolute
and is subject to review for abuse.’" L.C.S. v. S.A.S.,
19 Va. App. 709, 714, 453 S.E.2d 580, 583 (1995) (quoting Via
v. Via
, 14 Va. App. 868, 870, 419 S.E.2d 431, 433 (1992)).

In fixing the amount of the spousal support award, . . . the
court’s ruling will not be disturbed on appeal unless there has
been a clear abuse of discretion. We will reverse the trial court
only when its decision is plainly wrong or without evidence to
support it. Gamble v. Gamble, 14 Va. App. 558, 574, 421
S.E.2d 635, 644 (1992) (citations omitted).

"Upon petition of either party, a court may . . .
[modify] . . . spousal support . . . as the circumstances may
make proper." See Code ? 20-109. "The moving
party in a petition for modification of support is required to
prove both a material change in circumstances and that this
change warrants a modification of support." Schoenwetter
v. Schoenwetter
, 8 Va. App. 601, 605, 383 S.E.2d 28, 30
(1989); Furr v. Furr, 13 Va. App. 479, 481, 413 S.E.2d 72,
73 (1992); see also Blank v. Blank, 10 Va. App. 1,
4, 389 S.E.2d 723, 724 (1990) (holding that spousal support must
be redetermined if necessary in light of new circumstances). The
material change in circumstances must have occurred after the
most recent judicial review of the award, see Hiner v.
Hadeed
, 15 Va. App. 575, 577, 425 S.E.2d 811, 812 (1993), and
"must bear upon the financial needs of the dependent spouse
or the ability of the supporting spouse to pay." Hollowell
v. Hollowell
, 6 Va. App. 417, 419, 369 S.E.2d 451, 452
(1988). "The ‘circumstances’ which make ‘proper’ an
increase, reduction or cessation of spousal support under Code ?
20-109 are financial and economic ones." Id. at 419,
369 S.E.2d at 452-53. On appeal, the trial court’s findings must
be accorded great deference. See Bandas v. Bandas,
16 Va. App. 427, 432, 430 S.E.2d 706, 708 (1993). "In
determining whether credible evidence exists, the appellate court
does not retry the facts, reweigh the preponderance of the
evidence, or make its own determination of the credibility of
witnesses." Wagner Enters., Inc. v. Brooks, 12 Va.
App. 890, 894, 407 S.E.2d 32, 35 (1991). "We will not
disturb the trial court’s decision where it is based on an ore
tenus
hearing, unless it is ‘plainly wrong or without
evidence in the record to support it.’" Furr, 13 Va.
App. at 481, 413 S.E.2d at 73 (quoting Schoenwetter, 8 Va.
App. at 605, 383 S.E.2d at 30).

III. PENSION AS INCOME

On appeal, husband posits an alleged internal inconsistency
between the language of Code ? 20-107.1 and that of Code ?
20-107.3(G). [3] Husband argues that the
language of Code ? 20-107.1 requiring the trial court when
setting spousal support to consider all financial resources of a
party, including income from "all pension, profit sharing or
retirement plans, of whatever nature" conflicts with the
language of Code ? 20-107.3(G), limiting division of a party’s
pension to fifty percent of the marital share of cash benefits
actually received. Thus, husband contends that the trial court’s
failure to terminate his spousal support obligation resulted in
"double-dipping," because wife already received her
maximum marital share of his pension pursuant to the equitable
distribution provisions of the parties’ agreement.
[4]
Under the trial court’s order, husband would be required to use
his pension benefits to pay spousal support because he has no
other income. Although conceding that these code sections are
"part of one legislative scheme dealing with divorce,"
he argues that they remain in conflict, and the dollars reflected
in his disbursed marital share of pension monies cannot be used
to recalculate his spousal support obligation.

A. THE RELATIONSHIP BETWEEN CODE ?? 20-107.1 AND 20-107.3

"A primary rule of statutory construction is that courts
must look first to the language of the statute. If a statute is
clear and unambiguous, a court will give the statute its plain
meaning." Loudoun County Dep’t of Social Services v.
Etzold
, 245 Va. 80, 85, 425 S.E.2d 800, 802 (1993). "As
we do not believe the General Assembly intended to enact
irreconcilable provisions in the Act, we construe the provisions
in a way that gives full effect to all the statutory
language." Marchand v. Division of Crime Victims’ Comp.,
230 Va. 460, 463, 339 S.E.2d 175, 177 (1986).

"When the General Assembly uses different terms in the
same act, it is presumed to mean different things. . . . ‘In
construing a statute the court should seek to discover the
intention of the legislature as ascertained from the act itself
when read in the light of other statutes relating to the same
subject matter.’" Campbell v. Commonwealth, 13 Va.
App. 33, 38, 409 S.E.2d 21, 24 (1991) (quoting Robert Bunts
Eng’g & Equip. Co. v. Palmer
, 169 Va. 206, 209-10, 192
S.E. 789, 790-91 (1937)) (citation omitted). "[S]tatutes
addressing the same subject are to be read in pari materia.
In pari materia is the rule of statutory construction that
‘statutes which relate to the same subject matter should be read,
construed and applied together so that the legislature’s
intention can be gathered from the whole of the
enactments.’" Alger v. Commonwealth, 19 Va. App. 252,
256, 450 S.E.2d 765, 767 (1994) (quoting Black’s Law
Dictionary
791 (6th ed. 1990)). "Under the rule of
statutory construction of statutes in pari materia, statutes are
not to be considered as isolated fragments of law, but as a
whole, or as parts of a great, connected homogeneous system, or a
single and complete statutory arrangement." Lillard v.
Fairfax County Airport Auth.
, 208 Va. 8, 13, 155 S.E.2d 338,
342 (1967).

While Code ? 20-107.3(G) precludes the non-employee spouse
from receiving in the equitable distribution proceeding an
amount exceeding "fifty percent of the marital share
of cash benefits actually received by the party against whom such
award is made," Code ? 20-107.1(1) expressly requires that
when setting spousal support, the trial court shall
consider a party’s financial resources, including income
from "all pension, profit sharing or retirement
plans, of whatever nature." (Emphasis added). Each of these
sections concerns decidedly different aspects of the resolution
of marital rights. The one-time equitable distribution of
property completed by Code ? 20-107.3 is based on the accrued
rights of the parties in the distributed property. This is a
separate consideration from that necessary to measure the current
financial positions of the parties in determining spousal support
under Code ? 20-107.1. Different statutory considerations are
mandated for each. [5]

Code ? 20-107.1(1) evinces the General Assembly’s clear
intent for income from "all pension[s]" to be
included in a trial court’s calculation of spousal support.
(Emphasis added). Although Code ? 20-107.3(G) limits the award a
spouse can receive pursuant to the equitable distribution of
marital property, no language precludes that property from being
considered at a later time as income for purposes of calculation
of spousal support. The General Assembly could have specifically
directed, as did the New Jersey legislature, that a trial court
could not consider the pension share awarded in the equitable
distribution proceeding in determining spousal support.[6] It did
not do so. To the contrary, the plain language of the statute
mandates consideration of "all pension[s], profit sharing or
retirement plans" in the trial court’s determination of
spousal support.

Other states have emphasized the distinction between spousal
support and equitable distribution. See, e.g., Krafick
v. Krafick
, 663 A.2d 365, 373 (Conn. 1995) (where the Supreme
Court of Connecticut stated that "[a]n award of property is
final; the party who receives property pursuant to ? 46b-81 owns
it in his or her own right and controls it. Periodic alimony, on
the other hand, is conditional, subject to modification or
elimination"). In Riley v. Riley, 571 A.2d 1261, 1264
(Md. 1990), the Court of Special Appeals of Maryland held:

Although there is an interrelationship between the two in
the sense that, as to each, the court must consider the one
in deciding upon the other, . . . they have quite different
purposes and focuses. . . . [A]limony is intended to provide
periodic support to a financially dependent spouse following
the divorce. . . . [T]he principal focus is really on the
future . . . . A monetary award . . . is not intended as
support, and it focuses . . . on the present and past. . . .
The sole purpose . . . is to assure that the disposition of
that property upon the divorce will be equitable in terms of
the overall contributions that each party made to the
acquisition of the property and to the marriage and its
breakup.

Moreover, it is generally recognized that:

[S]pousal support and equitable distribution of property are
two distinct concepts. The nonpensioned spouse is not claiming
rights as a co-owner in the distributed property, but is instead
simply asserting that the pension should not be ignored when
gauging the financial position of the two parties for purposes of
awarding alimony. 7 Equitable Distribution Journal 1 (July
1990).

Additionally, in another context dealing with the interplay
between these two code sections, we held that "the
appropriate separation between considerations of spousal support
and considerations of an equitable distribution of marital wealth
prevents a ‘double dip’ by a spouse who seeks and receives
encumbered marital property under Code ? 20-107.3 and also seeks
and receives spousal support under Code ? 20-107.1." Gamble,
14 Va. App. at 577, 421 S.E.2d at 646. In analyzing the
legislative intent behind these sections, we held that, [W]hile
Code ? 20-107.1 requires a chancellor to consider the provisions
made with regard to marital property under Code ? 20-107.3, we
view that requirement as a practical means by which the
chancellor may fix a proper spousal support award in light of the
financial result of the monetary award. Thus, for example, income
producing property conveyed pursuant to Code ? 20-107.3 would
alter the needs of one party and the ability of the other party
to pay spousal support.

Id. at 576-77, 421 S.E.2d at 646 (holding that the
chancellor may not, pursuant to Code ? 20-107.1, fix a spousal
support award so that the receiving spouse can satisfy
outstanding debts on the marital property conveyed to that spouse
pursuant to Code ? 20-107.3) (citing Williams v. Williams,
4 Va. App. 19, 24, 354 S.E.2d 64, 66 (1987), and Reid v. Reid,
7 Va. App. 553, 564, 375 S.E.2d 533, 539 (1989)).

"Studied in the light of its purpose and the intent of
the legislature, the meaning of [these code sections] is not so
ambiguous as to leave reasonable doubt of its meaning, nor are
its words equally capable of more than one construction." Tiller
v. Commonwealth
, 193 Va. 418, 423-24, 69 S.E.2d 441, 444
(1952). The husband’s proposed limited construction of these two
statutory provisions "would be contrary to the express
language used and the manifest intent of the legislature, [and] would render the statute unreasonable, . . . which cannot be
presumed to have been the intent of the legislature." Id.
Accordingly, we find that, when considered in the overall
legislative scheme for the proper resolution of both property and
support issues, Code ?? 20-107.1 and 20-107.3 are compatible
and must be read together.

B. DUAL CONSIDERATION OF PENSION

We have recognized a distinction between equitable
distribution awards made pursuant to Code ? 20-107.3 and spousal
support awards made pursuant to Code ? 20-107.1. For example, in
Stumbo v. Stumbo, we held as follows:

A spousal support award under Code ? 20-107.1 serves a
purpose distinctly different from an equitable distribution
award fashioned under Code ? 20-107.3. "Spousal support
involves a legal duty flowing from one spouse to the other by
virtue of the marital relationship. By contrast, a monetary
award does not flow from any legal duty, but involves an
adjustment of the equities, rights and interests of the
parties in marital property." "In determining
spousal support, the trial court’s consideration must include
earning capacity, obligations, needs, the property interests
of the parties, and the provisions if any, made with regard
to marital property." "A review of all the factors
contained in Code ? 20-107.1 is mandatory" in making a
spousal support award. Stumbo v. Stumbo, 20 Va. App.
685, 691, 460 S.E.2d 591, 594 (1995) (citations omitted).

While we have not yet determined the precise question of
whether pension benefits post equitable distribution may be
considered as income in a calculation or recalculation of spousal
support, [7] several of our sister
states have addressed this issue.

The majority of these jurisdictions do not prohibit dual
consideration of the pension award for purposes of equitable
distribution and spousal support. In Riley, a case
factually similar to the case at bar, the Maryland Court of
Special Appeals decided that husband’s pension benefits may
properly "be considered as a resource for purposes of
determining his ability to pay alimony," even though wife
had already been given a share of the pension as part of the
monetary award. Riley, 571 A.2d at 1266. In that case, the
parties were divorced after thirty-two years of marriage. The
decree directed husband to pay alimony, gave wife a monetary
award based on marital property, and awarded her an interest in
husband’s pension. Husband paid the monetary award to wife. He
later retired and filed a motion to reduce or terminate his
alimony obligation. Husband argued, as in the instant case, that
the court erred in considering his pension and disability
benefits as sources of income for the purpose of determining his
ability to pay alimony. He contended that "his pension
benefits [could not] properly be considered as a resource for
purposes of alimony because [the wife] had already been given a
share of the pension as part of the monetary award and [she] therefore ha[d] no claim on the balance of the pension." Id.
at 1264. The trial court denied his motion. On appeal, the
Maryland Court of Special Appeals held as follows: "[W]e see
no reason why [the trial court] cannot base such an award on
assets or sources of income that have not been taken from the
payor and that do remain available." Id. The court
explained:

[The pension share] he paid to her is no longer a resource
of his and was not counted as such. He therefore has been
given credit for the monetary award paid to [wife]. The
evidence showed that [husband] receives, or is entitled to
receive . . . monthly pension benefits. That is his money,
and it is therefore, in fact, a resource that he has from
which to pay alimony. We see nothing unlawful or unfair in
the court’s considering it as such. Id. at 1265.

Similarly, in Pennsylvania, the Court of Common Pleas divorced
the parties, distributed the marital property, and awarded
alimony to wife. Husband, who was receiving his retirement
benefits, argued that he would be "unjustly burdened if the
pension is designated as a marital asset subject to equitable
distribution and also used to calculate the alimony award"
to wife. Braderman v. Braderman, 488 A.2d 613, 620 (Pa.
Super. 1985). The appellate court disagreed.

This argument ignores the provisions of the Divorce Code
providing that in determining the alimony award, the court must
consider numerous factors including the sources of income and the
property of both parties. In determining the husband’s ability to
pay support, the court must consider his earning power and the
nature and extent of his property. Also, in determining whether
[wife] lacks sufficient property to provide for her reasonable
needs, the court must consider any property distributed to the
wife pursuant to the equitable distribution award.

Id. Accord White v. White, 192 Cal. App.
3d 1022, 1028-29 (1987) (holding that the "income from [the
husband's] separate property pension must be considered along
with other appropriate factors when gauging his ability to pay
just and reasonable spousal support"); Krafick, 663
A.2d at 365 (holding that it is not double dipping to consider
vested pension benefits for purposes of equitable distribution
and as a source for alimony in a martial dissolution action); Sachs
v. Sachs
, 659 A.2d 678 (Vt. 1995) ("pensions may be
considered as marital assets . . . they may also be considered as
a source of income upon which an award of spousal maintenance may
be based").

Further, other marital awards or benefits may be considered a
source of income in different contexts. In McGuire, we
held that the trial court did not abuse its discretion in fixing
a spousal support award when it considered the monthly pension
payments the wife was receiving. See McGuire, 10
Va. App. at 251, 391 S.E.2d at 347. We stated that "Code ?
20-107.1 required the trial judge to consider the income
from the federal pension that [wife] . . . was to receive. . . .
We believe that the plain language of Code ? 20-107.1 requires
that monthly federal pension payments be considered as akin to
monthly income from an asset and not an exhaustible asset. . .
." Id. at 251-52, 391 S.E.2d at 347 (emphasis added).
Moreover, [M]ost states have never adopted the rule that a
pension cannot be a source for both property division and
alimony, and several states have rejected the rule expressly. . .
. It is entirely true that a pension cannot be both presently
existing property and income earned in the future; it must be one
or the other. . . . [A]n award of alimony can be based not only
upon the payor’s income but also upon his property. Where the
payor owns real property, for instance, he may under some
circumstances be required to sell it in order to pay alimony to
his former spouse . . . . All types of property, including
pensions, should be a permissible source for future alimony
payments.

See generally Brett R. Turner, Equitable
Distribution of Property
? 6.11 p. 355 (2d ed. 1995)
(footnotes omitted). We find the analysis and the cases cited
above equally applicable to the instant case. Thus, we hold that
the income received by husband from his share of the distribution
of his pension is a fungible asset that may be considered as a
resource when determining the amount of his spousal support
obligation. By the same token, the wife’s share of the pension is
a resource of hers which must be considered in determining her
need for support.

Additionally, it is noteworthy that the parties included
provisions in their Agreement for the reduction and/or
elimination of husband’s spousal support obligation upon the
happening of enumerated events. Paragraph 3 B. (2) of the
Agreement provides as follows:

The obligation of the Husband to pay spousal support to
the Wife shall terminate on the first to occur of: (a) the
death of the Husband; (b) the death of the Wife; (c)
remarriage of the Wife; or (d) the Wife living with a man to
whom she is not married for a period in excess of 6 months,
as though they were husband and wife.

However, the Agreement contains no provision excluding
husband’s share of the pension from his income for purposes of
recalculating his spousal support obligation. Neither does the
Agreement contain any provision excluding husband’s pension share
from his income in the event it becomes his only source of
income.

Lastly, we address husband’s reliance on the New Jersey cases
of Innes v. Innes, 569 A.2d 770 (N.J. 1990), and D’Oro
v. D’Oro
, 454 A.2d 915 (N.J. Super. 1982), which held that a
pension once divided may never be considered again. These are
easily distinguished from the instant case. The New Jersey
legislature amended its statute to provide that once a retirement
benefit "is treated as an asset for purposes of equitable
distribution, the court shall not consider income generated
thereafter by that share for purposes of determining
alimony." See also Staver v. Staver, 526 A.2d
290 (N.J. Super 1987) (holding that, pursuant to N.J.S.A.
2A:34-23, the portion of husband’s pension subject to equitable
distribution cannot be considered income for purposes of
alimony). The comparable provisions in Virginia, Code ??
20-107.1(1) and 20-107.3(G), contain no such prohibition. Thus,
the New Jersey statutory and case law cited by the husband is
inapposite.

Accordingly, we hold that the trial court did not abuse its
discretion in failing to terminate husband’s spousal support
obligation, and that the trial court properly reduced the
husband’s spousal support obligation from $2,600 to $800 based
upon a change in husband’s financial circumstances. For the
foregoing reasons, the trial court is affirmed.

Affirmed.

 

FOOTNOTES:

[1] The
final decree of divorce "ratified, adopted and
incorporated" the parties’ Agreement, and provides in
pertinent part as follows:

3 B. (1) The Husband agrees to pay to the Wife, for her
support and maintenance, Two Thousand Six Hundred Dollars
($2,600) per month . . . .

3 B. (2) The obligation of the Husband to pay spousal
support to the Wife shall terminate on the first to occur of:
(a) the death of the Husband; (b) the death of the Wife; (c)
remarriage of the Wife; or (d) the Wife living with a man to
whom she is not married for a period in excess of 6 months,
as though they were husband and wife.

3 C. (1) In the event that the Husband’s income shall be
reduced for reasons which are not wholly within the control
of the Husband, the Wife agrees to consider proposals of the
Husband for modification to the foregoing spousal support
provisions. The Husband agrees that any such proposals made
to the Wife will be made in good faith and only when any such
reduction in income has a deleterious effect on his ability
to make the payments required by this Agreement and his
ability to support himself in a manner consistent with his
standard [of] living prior to such income reduction.

3 C. (2) The Husband agrees that if the house is not sold
prior to his actual date of retirement, he will not ask a
court of competent jurisdiction to reduce or eliminate
spousal support if the sole basis for the reduction or
elimination of the support payments is his retirement.

3 C. (3) The parties agree that they shall have the right
to petition a court of competent jurisdiction to modify or
eliminate the foregoing support and maintenance in accordance
with any statutory provision or Rule of court then in force.

* * * * * * *

11 D. (1) The Wife shall be entitled to, and receive,
fifty per cent (50%) of the marital share of the Husband’s
military pension, when, as and if he receives said pension,
based on years married (calculated up to the date of
separation), during which Husband accrued a portion of his
pension, over total years in military service (including
Reserves) during which Husband accrued his total pension
benefit.

11 D. (2) The Wife shall be entitled to, and receive, her
maximum pension benefit allowable under Virginia and federal
law, fifty per cent (50%) of the marital share of Husband’s
civil (U.S. Government) pension, when, as and if he receives
said pension.

[2]
The record in this case included a "statement of
facts, testimony and other incidents of the case."

[3] Code ? 20-107.1 provides in
pertinent part:

[T]he court may make such further decree as it shall deem
expedient concerning the maintenance and support of
the spouses.

* * * * * * *

The court, in determining whether to award support and
maintenance for a spouse, shall consider the circumstances
and factors which contributed to the dissolution of the
marriage, . . . . If the court determines that an award
should be made, it shall, in determining the amount, consider
the following:

(1) The earning capacity, obligations, needs and financial
resources of the parties, including but not limited to income
from all pension, profit sharing or retirement plans, of
whatever nature
. . . .

(Emphasis added). Code ?
20-107.3 provides in pertinent part:

(A) Upon decreeing the dissolution of a marriage, and also
upon decreeing a divorce . . . the court, upon request of
either party, shall determine the legal title as
between the parties, and the ownership and value of all
property
, real or personal, tangible or intangible, of
the parties and shall consider which of such property
is separate property, which is marital property, and which is
part separate and part marital . . . .

* * * * * * *

(G) [U]pon consideration of the factors set forth in
subsection E: (1) The court may direct payment of a
percentage of the marital share of any pension,
profit-sharing or deferred compensation plan or retirement
benefits, whether vested or nonvested, which constitutes
marital property
. . . . However, the court shall only
direct that payment be made as such benefits are payable. No
such payment shall exceed fifty percent of the marital
share of the cash benefits actually received by the
party against whom such award is made.

(Emphasis added).

[4] "Double dipping" is
the term used to describe [that which] . . . occurs when property
is awarded to a spouse in equitable distribution but is then also
treated as a source of income for purposes of calculating alimony
obligations. Double dipping disputes usually center on pensions.7
Equitable Distribution Journal 1 (July 1990).

[5] The spousal support award,
unlike the equitable distribution award, is subject to
modification as circumstances change. The equitable distribution
award, once made, is final and is not dependent on future events.

[6] See N.J.S.A. 2A:34-23,
which provides in significant part that "[w]hen a share of a
retirement benefit is treated as an asset for purposes of
equitable distribution, the court shall not consider
income generated thereafter by that share for purposes of
determining alimony." See also Flach v. Flach,
606 A.2d 1153, 1154 (N.J.Super. 1992) ("It is clear that the
Legislature, by enacting the ‘pension’ amendment to N.J.S.A.
2A:34-23, eliminated ‘double-dipping’ for retirement benefits. .
. . [O]n alimony modification application, all previously
equitably distributed assets and all assets acquired with, by or
through equitably distributed assets, when repaid, are not to be
deemed to be income for the purpose of determining
alimony.").

[7] See Stubblebine v.
Stubblebine
, 22 Va. App. 703, 709, 473 S.E.2d 72, 74-75
(1996), where we "express[ed] no opinion on the relationship
between Code
20-107.1 and 20-107.3."

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