Carpenter v. Carpenter , 657 P.2d 646 ( 1983 )

BARNES, Chief Justice,

dissenting:

While I concur with the majority regarding the inclusion of the pension fund in the marital estate, I must respectfully dissent to the double charge against the pension allowed by the Court in this case. As noted in the majority opinion, in the past we have held that such funds are not to be treated as jointly acquired property, but may be considered as a factor in determining the amount of support alimony. To be consistent we should now hold that since the pension fund is to be treated as jointly acquired property, it should not be considered as a factor in determining the amount of support alimony.

I would also require the trial court to take into account the tax consequences of the distribution of the fund. The trial court based the property division upon the value of the fund at the time of trial without allowing any adjustment for taxes which the appellant will be required to pay when he receives the benefits.

In Stern v. Stern, quoted by the majority, the New Jersey Supreme Court said:

“The fact that he will pay a tax on these receipts may be relevant consideration when considering whether a distribution is equitable and is clearly relevant with respect to the determination of alimony ...” (emphasis added).

I believe that the language is applicable to the case at bar. The trial court should have made allowances for the taxes which appellant will pay on the income from the fund. By using the gross dollar figure of the fund rather than a net figure, the Court is unfairly penalizing appellant. I would remand to the trial court with directions to determine the amount of alimony for support without considering the amount appellant would receive from his retirement fund and to determine the net amount appellant would receive from his retirement fund and then divide that between the parties.

I am authorized to state that OP ALA, J., joins me in this dissent.