Fattore v. Fattore, 203 A.3d 151

Parties divorced in 1997 after a 35-year marriage; judgment divided property and provided plaintiff a 50% share of the marital coverture portion of defendant Frank Fattore’s military pension via QDRO; both parties waived alimony.
A QDRO was entered in 1999; defendant later became disabled and elected VA disability benefits, which reduced/displaced the disposable military retirement pay and left nothing available for plaintiff’s QDRO share.
Plaintiff learned in 2010 that disability benefits had precluded her pension payments and filed a motion in 2016 seeking compensation for her lost pension share; trial court held a plenary hearing and found substantial inequity.
The Family Part ordered defendant to pay plaintiff $1,800/month as an equitable-distribution-based indemnification (not labeled alimony) and appointed a pension appraiser; it denied plaintiff’s alimony request and awarded $10,000 in counsel fees.
On appeal, defendant argued the indemnification order is preempted by federal law (Howell/Mansell); plaintiff argued that, if indemnification is preempted, the court should award alimony for the lost pension.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court may require dollar-for-dollar indemnification from other assets for a military pension waived when spouse elects VA disability	Fattore should be compelled to make plaintiff whole for her 50% equitable distribution share despite waiver	Indemnification is preempted by federal law (Howell/Mansell); state courts cannot effectively replace waived military pay	Reversed: indemnification ordering dollar-for-dollar payment from other assets is preempted by federal law (Howell) and therefore invalid
Whether plaintiff may obtain alimony despite a mutual alimony waiver because of the post-judgment pension loss	Waiver should not bar relief; the pension loss is a substantial, permanent change warranting alimony or modification	Alimony waiver bars spousal support; reopening is unfair and contrary to precedent	Remanded: alimony waiver does not bar consideration of post-judgment alimony given substantial, unforeseeable change; court may award or modify alimony (record insufficient now)
Whether trial court’s counsel-fee award should stand	Counsel fees were reasonable given plaintiff’s inability to pay and good-faith motion	Fees premised on an erroneous legal theory; should be reversed	Reversed: fee award vacated as it relied on the now-preempted indemnification rationale, but trial court may reconsider fees on remand

Howell v. Howell, 137 S. Ct. 1400 (U.S. 2017) (federal law preempts state orders that effectively replace military retirement pay waived for VA disability benefits)
Mansell v. Mansell, 490 U.S. 581 (U.S. 1989) (USFSPA excludes disability benefits from divisible disposable retired pay)
Whitfield v. Whitfield, 373 N.J. Super. 573 (App. Div. 2004) (state court previously enforced indemnification for pension reduction where order could be satisfied from any resources; relied on pre-Howell law)