Barr v. Barr
11 A.3d 875
N.J. Super. Ct. App. Div.2011Background
- Barr and Barr were married in 1968 and divorced in 1987; they executed a PSA incorporated into the final judgment.
- At separation, Barr had 11 years of active Air Force service (Captain); PSA provided plaintiff with 50% of benefits attributable to those 11 years.
- Post-divorce, Barr entered the Reserves; after retiring as Major in 2006, plaintiff began receiving 42% of his monthly retirement pay per the PSA, with tax withholdings arranged.
- Barr ceased most payments in March 2008; by January 2009 plaintiff moved to enforce the PSA and seek arrears and fees.
- The Family Part ordered 42% of the entire pension going forward and awarded arrears and fees; defendant sought reconsideration but won partial relief.
- The parties disputed whether post-dissolution promotion increases should be included in plaintiff’s share and the proper tax offset and counsel-fee award; the court reversed and remanded for plenary proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is PSA language unambiguous on plaintiff's share? | Barr interprets to 50% of all benefits during marriage. | Barr argues post-divorce promotion benefits excluded. | Ambiguity exists; remand for plenary interpretation. |
| Should plaintiff receive increases due to post-dissolution promotion? | Coverture/fraction approach includes post-marriage increases as marital effort. | Post-divorce increases should be immune if arising from post-dissolution efforts. | Remand required to determine immunity versus marital-origin increases. |
| Tax offset calculation for arrears | Tax impact should reflect actual withholding and tax consequences. | Tax offset calculated at 20% based on record; judge erred in calculation. | Need adequate findings on remand; calculation vacated. |
| Counsel fees award should be sustained or reconsidered | Fees related to enforcing orders and litigation are appropriate. | Fees require analysis of financials and reasonableness. | Remand to re-evaluate under proper factors; prior award to be reviewed. |
Key Cases Cited
- Pacifico v. Pacifico, 190 N.J. 258 (2007) (contract interpretation and unequal bargaining power guidance)
- Kikkert v. Kikkert, 88 N.J. 4 (1981) (pension = asset subject to equitable distribution)
- Whitfield v. Whitfield, 222 N.J. Super. 36 (App.Div. 1987) (pension includability and lifetime distribution guidance)
- Moore v. Moore, 114 N.J. 147 (1989) (present value vs. deferred distribution and marriage-year attribution)
- Claffey v. Claffey, 360 N.J. Super. 240 (App.Div. 2003) (coverture fraction and pension distribution methodology)
- Reinbold v. Reinbold, 311 N.J. Super. 460 (App.Div. 1998) (post-divorce pension increases and marital effort distinction)
- Risoldi v. Risoldi, 320 N.J. Super. 524 (App.Div. 1999) (coverture fraction and continued marital value)
- Hayden v. Hayden, 284 N.J. Super. 418 (App.Div. 1995) (post-divorce benefits not immune from distribution)