ROBERT DELL'OSA v. MONA DELL'OSA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3184-08T13184-08T1

ROBERT DELL'OSA,

Plaintiff-Appellant,

v.

MONA DELL'OSA,

n/k/a MONA MIKHAIL,

Defendant-Respondent.

______________________________________

 

Submitted October 28, 2009 - Decided

Before Judges Lyons and J. N. Harris.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-762-01.

Trombadore & Wilson, attorneys for appellant (David W. Trombadore, on the brief).

Law Offices of Leonard A. Weitzman, L.L.C., attorneys for respondent (Leonard A. Weitzman, on the brief).

PER CURIAM

Plaintiff Robert Dell'Osa, former husband of defendant, Mona Mikhail, appeals an order, dated January 23, 2009, denying his motion to have the trial court reconsider its August 27, 2008, order that equitably distributed the parties' retirement accounts.

The relevant facts and procedural history necessary for our resolution of the issues raised in this matter are as follows. The parties were divorced on May 13, 2002. Attached and incorporated into the judgment of divorce was a Property Settlement Agreement (PSA) that was executed by the parties. A portion of the PSA addresses the parties' retirement accounts. After listing the accounts held by the respective parties, the PSA goes on to state:

[t]he parties further agree that the marital portion of these accounts shall be divided on a 50/50 basis with the recognition that Husband's contributions are pre-tax dollars, while Wife's contains after[-]tax dollars. The accounts shall be evaluated to determine the marital portion of each. This evaluation or evaluations, as the case may be, shall be performed by Pension Appraisers, with the parties sharing the cost of same. Once the marital portions are identified, Wife shall use her 50% of her share of Husband's accounts to pay Husband the balance of $40,000 in credits due to completed [sic] the buyout of Husband's interest in the marital home. To the extent any QDRO's are necessary to effectuate the remaining equitable distribution of these accounts, the parties shall divide the cost of preparation of the QDRO's, inclusive of preparation and attorneys [sic] fees incurred for this purpose. All premarital and postcomplaint contribution shall be excluded and also all interest and earning thereon.

On July 27, 2007, a different trial court entered an order equitably distributing the retirement accounts by requiring the parties to prepare two QDRO's, one distributing fifty percent of the marital portion of plaintiff's retirement account to defendant and the other QDRO distributing fifty percent of defendant's retirement account to plaintiff. The parties subsequently discovered and concede that that trial court used the wrong figures from Pension Appraisers to calculate plaintiff's pension. Consequently, in February 2008, defendant filed a motion "to correct prior order and to enforce."

Another trial court decided on August 27, 2008, to resolve on the merits all of the disputed claims. It entered an order on that date distributing the monies in the pension accounts as follows. It determined that the husband's pension account was valued at $127,313.87, and the wife's pension account at $68,829.20. Each party, pursuant to the PSA, was entitled to a fifty percent share. In other words, the husband owed $63,656.94 to the wife, and the wife owed $34,414.60 to the husband. However, because the PSA provided that "[o]nce the marital portions are identified, Wife shall use her 50% share of her Husband's accounts to pay Husband the balance of the $40,000 in credits due to completed [sic] the buyout of Husband's interest in the marital home," the court deducted $40,000 from the $63,656.94 the husband would otherwise owe the wife. That left a balance due from the husband to the wife of $23,656.94.

The wife also was entitled to credits for money that the husband owed her, $4,051 for an automobile and $7,131.26 and $319 for other offsets. That resulted in the wife owing the husband $22,903.34. The difference between what the parties owed each other was then $753.60. The trial court, therefore, determined that a QDRO was not necessary and simply ordered that plaintiff husband pay defendant wife $753.60.

On October 8, 2008, plaintiff filed a motion for reconsideration of the trial court's August 27, 2008, order. Plaintiff's motion claims that the trial court overlooked the fact that plaintiff's retirement accounts were comprised of pre-tax funds while the wife's were comprised of after-tax funds and the court was mistaken in not tax-adjusting the funds subject to equitable distribution. The trial court denied the motion for reconsideration, concluding that it appropriately followed the terms of the PSA. This appeal ensued.

On appeal, plaintiff argues that the party's marital retirement accounts must be distributed by separate QDRO's, not by any offset of other assets.

We begin by reviewing the law as it applies to marital agreements. As stated in Massar v. Massar, 279 N.J. Super.

89, 93 (App. Div. 1995):

This State has a strong public policy favoring enforcement of agreements. See Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 206 N.J. Super. 523, 528 (App. Div. 1985). Marital agreements are essentially consensual and voluntary and as a result, they are approached with a predisposition in favor of their validity and enforceability. Petersen v. Petersen, 85 N.J. 638, 642 (1981); Dworkin v. Dworkin, 217 N.J. Super. 518, 524, (App. Div. 1987). Marital agreements, however, are enforceable only if they are fair and equitable. Petersen, supra, 85 N.J. at 642; Carlsen v. Carlsen, 72 N.J. 363, 370 (1977); Guglielmo v. Guglielmo, 253 N.J. Super. 531, 541 (App. Div. 1992); Capanear v. Salzano, 222 N.J. Super. 403, 407 (App. Div. 1988). Any marital agreement which is unconscionable or is the product of fraud or overreaching by a party with power to take advantage of a confidential relationship may be set aside. Guglielmo, supra, 253 N.J. Super. at 541; Dworkin, supra, 217 N.J. Super. at 523. In fact, the law affords particular leniency to agreements made in the domestic arena and similarly allows judges greater discretion when interpreting these agreements. Guglielmo, supra, 253 N.J. Super. at 542. Such discretion is based on the premise that, although marital agreements are contractual in nature, "contract principles have little place in the law of domestic relations." Id. [(]citing Lepis v. Lepis, 83 N.J. 139, 148 (1980)[)]. Nevertheless, the contractual nature of such agreements has long been recognized and principles of contract interpretation have been invoked particularly to define the terms of the agreement and divine the intent of the parties. Capanear, supra, 222 N.J. Super. at 407. In interpreting the agreement, the court will not draft a new agreement for the parties. Aarvig v. Aarvig, 248 N.J. Super. 181, 185 ([Law] Div. 1991).

As stated in Driscoll Constr. Co., Inc. v. State, Dep't of Transp., 371 N.J. Super. 304, 313 (App. Div. 2004):

[w]hen interpreting a contract, the court's goal is to ascertain the intention of the parties to the contract as revealed by the language used, taken as an entirety; and, in the quest for intention, the situation of the parties, the attendant circumstances, and the objects they were thereby striving to attain . . . .

[Internal quotations omitted.]

The interpretation or construction of a contract is usually a legal question for the court unless the meaning is ambiguous or there is a need for parol evidence in aid of interpretation. Id. at 313-14.

In the instant case, we find that the language of the PSA is neither ambiguous nor in need of parol evidence. Plaintiff argues that the phrase "with the recognition that Husband's contributions are pre-tax dollars, while the Wife's contributions contains after[-]tax dollars," requires separate QDRO's to implement the division of the marital portion of the retirement accounts.

We disagree with that interpretation. The PSA clearly states that the "accounts shall be divided on a 50/50 basis with the recognition that Husband's contributions are pre-tax dollars, while Wife's contains after[-]tax dollars." The word recognition is defined as "acknowledgment" or "admission, as of a fact." Webster's New World College Dictionary 1197 (4th. ed. 2001). Given the definition of the word recognition, the PSA, therefore, reads that the division of the retirement accounts will be on a fifty-fifty basis, acknowledging and recognizing as a fact that the contributions were not the same. Consequently, the language of the PSA, by its terms, does not require any equitable distribution of the retirement accounts to be tax-adjusted.

A court may not make a better contract for either party than the one the parties drafted. Graziano v. Grant, 326 N.J. Super. 328, 342 (App. Div. 1999). Our interpretation is further supported by the balance of the pertinent PSA provisions. The PSA provides that once the marital portions of the retirement accounts are identified, the wife must use her fifty percent share of her husband's accounts to pay the husband the balance of the $40,000 in credits due for the buyout of the marital home. That would not be consistent with plaintiff's proffered interpretation, since the $40,000 would be a direct offset and it would not have been tax-adjusted. Also, the PSA notes that "[t]o the extent any QDRO's are necessary to effectuate the remaining equitable distribution of these accounts, the parties shall divide the cost of preparation of the QDRO's, inclusive of preparation and attorneys [sic] fees incurred for this purpose." (Emphasis added). This provision recognizes that there would be a $40,000 credit, and hence, a QDRO may not be necessary. The trial court's netting of the sums due to the parties in this case recognized that the PSA did not require QDRO's, but that a QDRO was to be used only if "necessary."

Consequently, we are satisfied that the plain language of the PSA does not require separate QDRO's for the equitable distribution of the retirement accounts or that any sums on distribution be tax-adjusted.

Affirmed.

We note that plaintiff's motion to the trial court was captioned as one for reconsideration. It was dated October 8, 2008. It was clearly out of time pursuant to Rule 4:49-2, given the order it sought to have reconsidered was signed on August 27, 2008. Further, Rule 1:3-4(c) prohibits the enlargement of the time for a motion for reconsideration under Rule 4:49-2. In the movant's papers, however, he argues that the motion is one to correct a "mistake." Hence, given the fact that no objection was raised below, we are treating the application as one made pursuant to Rule 4:50-1(a).

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A-3184-08T1

December 1, 2009