FRANCINE BUNALSKI v. JOHN BUNALSKI, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6354-08T26354-08T2

FRANCINE BUNALSKI,

Plaintiff-Respondent,

v.

JOHN BUNALSKI, JR.,

Defendant-Appellant.

 

Argued May 5, 2010 - Decided
June 18, 2010

Before Judges Stern, J. N. Harris, and Newman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1235-01.

John A. Craner argued the cause for appellant (Craner, Satkin, Scheer & Schwartz, P.C.; attorneys; Mr. Craner of counsel and on the brief).

Francine M. Aster argued the cause for respondent (Francine M. Aster, P.C. attorney; Ms. Aster on the brief).

PER CURIAM

This appeal involves a matrimonial dispute concerning 1) equitable distribution of a police officer's future benefits in a Police and Firemen's Retirement System (PFRS) pension, 2) court-ordered life insurance put in place to protect the non-pensioner spouse's equitable distribution in the PFRS pension, and 3) reallocation of counsel fees incurred during the parties' post-judgment journey through the Family Part. We affirm the order for equitable distribution and counsel fees, but reverse the order directing defendant to fund life insurance for plaintiff's benefit.

I.

On January 4, 1982, defendant began employment with the Irvington Police Department (the Department) as a police officer. Almost six full years later, on December 1, 1987, defendant was voluntarily placed on ordinary disability retirement and started receiving ordinary disability retirement pension benefits from the PFRS in the amount of approximately $900 per month. As of that date, defendant was deemed to have accrued seventy months of PFRS pension service credits.

On August 18, 1989, when plaintiff and defendant were married, defendant was still receiving these ordinary disability retirement pension benefits.

On September 1, 1991 after his disability had subsided and subsequently ended defendant regained employment with the Department as a police officer and was duly re-enrolled in the PFRS. In 1993, defendant purchased twenty-five months of PFRS pension service credits at a total cost of $7,485.

In January 1996, defendant underwent hip replacement surgery but was still capable to serve as a police officer. The Department at that time assigned defendant to an inside desk position in its 9-1-1 center. After later receiving a promotion to the rank of sergeant, defendant was assigned to outside road duty. This substantial change in task prompted defendant to complain to his superiors that such activity was against his doctor's orders. A series of grievances did not result in a change to defendant's road assignment.

In early 1999, the Department informed defendant that it did not have any permanent positions of a sedentary nature. He was advised to apply for another ordinary disability retirement pension. When defendant refused to take this advice, the Department initiated an involuntary application procedure, requesting that the PFRS Board of Trustees (the Board) authorize the placement of defendant on ordinary disability retirement.

Effective July 1, 1999, the Board placed defendant on ordinary disability retirement, thereby terminating defendant's employment as a police officer against his wishes. As of that date, defendant was deemed to have accrued a total of 189 months of PFRS pension service credits, including the twenty-five months previously acquired in 1993.

On December 9, 1999, as a result of this adverse employment action initiated by the Department, defendant commenced a Law Against Discrimination (LAD) lawsuit in state court against the Department and the municipality of Irvington (Irvington) for wrongful termination and failure to accommodate his disability. Defendant sought reinstatement, along with compensatory and punitive damages. He believed that if successful, he would also be able to recover PFRS pension service credits from July 1, 1999 up until the time of his hoped-for reinstatement.

On October 26, 2001, the Law Division granted summary judgment in favor of Irvington and the Department. Subsequent appeals proved fruitless in achieving defendant's desired result. In 2006, the litigation was finally terminated after all appeals had been exhausted, leaving defendant still without a police officer's position. Bunalski v. City of Irvington, 188 N.J. 357 (2006). See also Bunalski v. Twp. of Irvington, 180 N.J. 161 (2004) (dismissing the municipality's petition for certification as having been improvidently granted, holding that it was inappropriate to consider substantive issues relating to plaintiff's LAD claims in light of significant procedural questions not raised in, nor considered by, the lower court such as the preclusive effect of a final administrative determination).

Meanwhile, on December 5, 2000, plaintiff had filed a complaint for divorce against defendant. On November 29, 2001, the parties executed a Property Settlement and Separation Agreement (PSSA), which was intended to resolve all of their differences. Two months later, on January 31, 2002, the Family Part entered a Dual Final Judgment of Divorce, which reflected that the PSSA "is hereby made a part of this Judgment, but shall not merge therewith." The Family Part judge modified the language of the proposed judgment that was submitted to him, which resulted in the following provision appearing in the final judgment:

The Court recognizes that pending the outcome of Defendant/Husband's lawsuit in the matter of John Bunalski v. City of Irvington, et al, Docket No. ESX-l-12416-99, there may be an issue of equitable distribution if the lawsuit is resolved in Defendant/Husband's favor. The outcome of this lawsuit will not change the present equitable distribution, but will only pertain to the lawsuit.

The PSSA also directly addressed defendant's LAD lawsuit, observing that just one month earlier "the Honorable Jared D. Honigfeld granted the Township of Irvington's Motion for Summary Judgment on October 26, 2001." The PSSA further provided:

In the event that Husband shall at any time in the future receive a settlement or jury award as a result of said employment-litigation, then the parties do agree that the issues involving equitable distribution be reopened, and subject to litigation in the Family Court. At any such time, any conversion of Husband's pension from pay-status to future benefit shall require an evaluation of the coverture portion of Husband's pension for equitable distribution purposes, and Wife hereby retains her right to an equitable share of Husband's pension.

* * *

Wife waives any & all rights, title & interest to Husband's pension should the lawsuit not be successful & should Husband's pension benefits remain status quo.

[Emphasis in original.]

Because defendant's 1999 termination of employment resulted in his receipt of an ordinary disability retirement allowance, defendant retained the statutory opportunity separate from the LAD litigation to attempt to demonstrate to the Board that "the disability which existed at the time he was retired has vanished or has materially diminished." N.J.S.A. 43:16A-8(2); see also N.J.A.C. 4A:4-7.12. Defendant, then still under the age of fifty-five years, submitted to the Board new medical documentation and underwent a new independent medical examination by a new independent medical examiner. Finally, on August 14, 2007, the Board determined that defendant was no longer totally and permanently disabled to prevent him from the performance of his duties as a police officer. Defendant was reinstated to his position as a police officer in the Department pursuant to N.J.S.A. 43:16A-8(2), and was again re-enrolled in the PFRS effective on October 1, 2007. He did not obtain any retroactive PFRS pension service credits for the period between July 1, 1999 and October 1, 2007, during which his employment had been terminated.

Almost one year later, on September 11, 2008, plaintiff filed a pro se motion in aid of litigant's rights in the Family Part to compel defendant to sell his interest in the marital home to her pursuant to a post-judgment order that had been entered by the Family Part two years earlier. On September 29, 2008, defendant with whom the parties' daughter resided filed a cross-motion seeking a stay of the 2006 order to allow him and his daughter to move into and reside in the marital home until the daughter graduated from high school in 2010.

Plaintiff, now represented by counsel, filed a response to the cross-motion, in which she raised the issue of her right to equitable distribution of defendant's future PFRS pension benefits. The Family Part first ordered defendant to sell his interest in the marital home to plaintiff. The net proceeds of the transaction were to be held in escrow pending the outcome of the dispute regarding equitable distribution of defendant's PFRS pension. Additionally, the court ordered at that time the sum of $2,500 to be re-allocated from defendant to plaintiff for counsel fees, explaining that "Mr. Bunalski's motion filing exhibits a lack of [g]ood [f]aith."

Although plaintiff was aware as early as October 2007 of defendant's return to the Irvington police force, she did not apply to the Family Part for equitable distribution relief until after defendant sought to reside in the marital home. Additionally, plaintiff was under the misimpression that defendant's reinstatement to the police force was a result of the LAD litigation. In her response to defendant's cross-motion, plaintiff mistakenly averred that "[t]here obviously have been proceeds, as Defendant has admitted that he was successful in his litigation to restore him as a police officer in the Town of Irvington." She also sought "full discovery of all documents relating to the settlement with the Town[ship] of Irvington and disclos[ure of] exactly what amount of money he received [and] where that money is."

Based upon the issues presented, the Family Part conducted a plenary hearing to determine plaintiff's entitlement, if any, to an equitable share in defendant's future pension benefits as provided in the PSSA. This plenary hearing took place between May 11, 2009 and May 14, 2009.

During the plenary hearing, plaintiff testified that she understood the PSSA to mean that "[a]s long as my husband was on disability pension I waived his pension. Once it changed from disability pension to a full pension, [then] I was able to have [an] interest in it." Additionally, she testified that she understood "status quo" to mean:

if he receives his job back his pension status would change. If he didn't receive his job back and his pension remained as a disability pension, [then] I was waiving all rights to it, because it was his main form of income.

Furthermore, plaintiff stated that her expectation from the matrimonial settlement was that "if [defendant] didn't win the lawsuit and he didn't go back to work, and he stayed on this disability pension that I would waive all rights to that pension." However, "if any part of that lawsuit was won and he won his job back then I was entitled to equitable distribution."

Conversely, defendant testified that the PSSA meant only that "[i]f the lawsuit I had at the time was successful that [plaintiff] would I guess receive some money or could come to court to see what she's entitled to if she was entitled to anything." When asked if his pension benefits had remained "status quo," as mentioned in the PSSA, defendant answered, "I don't know."

The plenary hearing was not limited solely to the testimony of the parties. The judge also heard testimony from plaintiff's witness Judith Deer, an expert in pension evaluations. According to Deer who conceded that the background information she relied upon was incomplete and in some cases, incorrect a total of $264,526 of defendant's pension benefits was attributable to the marriage, and plaintiff was entitled to one-half of that amount. However, she further testified that although plaintiff was entitled to one-half of that amount as equitable distribution, there was no survivorship benefit available to the ex-spouse with a PFRS pension. Thus, if plaintiff predeceased defendant, her interest in the pension would terminate and her estate would receive nothing from those benefits. Similarly, plaintiff's interest in the pension would be ended if defendant predeceased her, because her interest was based solely on defendant's lifetime. Accordingly, Deer opined that it was common practice for parties in divorce proceedings to protect the non-pensioner spouse's interest in a PFRS pension by either providing life insurance or other collateralized assets to the other spouse in order to ensure against a possible forfeiture.

The Family Part also considered the testimony of Peter J. Gorman, Executive Assistant, State of New Jersey, Department of Treasury, Division of Pension and Benefits. In sum, Gorman's testimony reinforced the basic principle that there was no survivorship interest for an ex-spouse with defendant's PFRS pension.

Lastly, Francine Aster, the attorney who had originally participated in the negotiation of the PSSA was called to testify. Aster stated that if defendant's pension benefits' "status quo" (as of the date of the PSSA) changed, which plaintiff argues occurred when defendant was reinstated to active police officer duty in 2007, plaintiff could return to the Family Part for equitable distribution of the appropriate portion of defendant's future pension benefits.

After considering all of the evidence, the court made its findings, stating in part:

After three days of hearings, reviewing the closing arguments, written closing arguments presented to the Court, and reviewing my notes, considering the credibility of the parties, reading the documents themselves, and considering the totality of the circumstances surrounding the entry and negotiation of this divorce back in November of 2001, it is this Court's clear finding that Miss Bunalski did not in fact waive her interest in the pension of Mr. Bunalski, should in fact he be reinstated to that pension.

According to the court, plaintiff made it clear that

it was her understanding at the time that the parties negotiated this [PSSA] that if in fact Mr. Bunalski's lawsuit was not successful, that she would not have any other interest in the pension because he would continue to be on disability status and he would have to live off of that money.

So there is no question that she was willing to waive and did in fact waive any interest that she had in the disability pension that he was receiving.

However, she also clearly testified that in the event that he was either successful in the litigation or received his pension back in some fashion, that the pension itself would be subject to equitable distribution.

The court also noted that Aster's main concern was to protect plaintiff "in the event that [defendant] was somehow reinstated as a police officer, as he had been before. And therefore, was continuing to receive his pension as a police officer." According to the Family Part judge, Aster completely understood that her client would waive her interest in defendant's disability pension if he lost the lawsuit and he continued to receive said disability pension. This was provided to facilitate defendant's ability to support himself and meet his child support obligations with the income from this disability pension, especially in light of the fact that the parties mutually agreed to waive alimony towards each other. Additionally, the judge found that defendant "was very evasive in his answers," and "did not appear to . . . to be very credible with regard to his position that his ex-wife had waived her entire interest in his pension in the event that he was reinstated."

Consequently, it was determined that plaintiff was entitled to equitable distribution of defendant's future pension benefits from the PFRS. By order dated July 29, 2009, defendant was subjected to a future allocation by the PFRS in favor of plaintiff of "the appropriate percentage" of defendant's retirement benefit at the time he retired. Defendant was further ordered by the court to name plaintiff as a beneficiary of one-third of his employment-related life insurance, and at the time of his retirement to name plaintiff the sole beneficiary of his employment-related life insurance.

Because the court had previously required that a portion of defendant's share of the proceeds of the marital home be held in escrow, it ordered the distribution of such funds as follows:

$10,000 to plaintiff to pay for a life insurance policy on defendant's life in the amount of $100,000 at the time of defendant's retirement.

$18,000 to plaintiff actually, to plaintiff's attorney as a reallocation of counsel fees.

$4,000 to plaintiff again, to plaintiff's attorney as a reallocation of costs and expenses.

The balance to defendant.

The judge's basis for reallocating attorney's fees and costs included the following pointed observations:

[T]he total lack of of I find cooperation by Mr. Bunalski and his attorney, the total lack of of attempting to resolve this matter in any way, shape or form including including through what I thought to be efforts by Miss Aster to try to have the parties sit down in order to settle this.

* * *

So there clearly is a need as far as this Court is concerned to have Mr. Bunalski contribute to the attorney's fees and the costs of Mrs. Bunalski.

* * *

I believe that the conduct of Mr. Bunalski and Mr. Craner throughout this matter prolonged this matter unnecessarily and perhaps if the parties, if Mr. Bunalski was properly advised that this matter could have been resolved at an earlier time.

This appeal followed, which expressly sought review of the October 28, 2008 and July 29, 2009 orders. However, on

September 8, 2009, the Family Part entered a "Domestic Relations Order for the Police and Fireman's Retirement System of New Jersey," which ordered the Division of Pensions and Benefits to withhold from defendant's "gross monthly retirement allowances

. . . an amount to be computed by multiplying the gross monthly retirement allowances by fifty percent (50%) and a coverture fraction in which the numerator will be the total number of months that the spouses were married, while [defendant] was a member of the retirement system specifically 144 months, and the denominator will be stated to be the total months of service credit accrued within the retirement system at the time of retirement."

II.

A.

We will not disturb the Family Part's findings unless they demonstrably lack support in the record with substantial, credible evidence. N.J. Div. of Youth & Family Servs. v G.M., 198 N.J. 382, 396 (2009). We must give due regard to the judge's credibility determinations and "feel for the case" based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). See also Pascale v. Pascale, 113 N.J. 20, 33 (1988). In recognition of the Family Part's special expertise in such matters, appellate courts must bestow particular deference to fact-finding in family cases, and to the conclusions that logically flow from those findings. Cesare, supra, 154 N.J. at 412-13. However, a judge's purely legal decisions are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007).

B.

Because the judge was interpreting the parties' PSSA a settlement agreement we are obliged to recognize that such agreement must be afforded special deference. "Settlement agreements in matrimonial matters, being essentially consensual and voluntary in character, . . . [are] entitled to considerable weight with respect to their validity and enforceability in equity, provided they are fair and just." Dolce v. Dolce, 383 N.J. Super. 11, 20 (App. Div. 2006) (quoting Petersen v. Petersen, 85 N.J. 638, 642 (1981)); see also Lepis v. Lepis, 83 N.J. 139, 153 (1980).

An agreement like the PSSA is favored by the "'strong public policy favoring stability of arrangements' in matrimonial matters." Konzelman v. Konzelman, 158 N.J. 185, 193 (1999) (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). Accordingly, it is "approached with a predisposition in favor" of its "validity and enforceability." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). However, a PSSA may only be validated to the extent that the agreement is consensual and voluntary, Konzelman, supra, 158 N.J. at 194, and comports with "equitable precepts." Weishaus v. Weishaus, 180 N.J. 131, 143 (2004) (internal citations omitted).

Marital property settlements agreements can only be enforced if they are fair to both parties because "'contract principles have little place in the law of domestic relations.'" Conforti v. Guliadis, 128 N.J. 318, 323 (1992) (quoting Lepis, supra, 83 N.J. at 148). Nevertheless, matrimonial agreements such as the PSSA have long been recognized to be contractual in nature. Pacifico v. Pacifico, 190 N.J. 258, 265 (2007) (citing Massar, supra, 279 N.J. Super. at 93. "A basic principle of contract interpretation is to read the document as a whole in a fair and common sense manner." Hardy ex. rel. Dowdell v. Abdul-Matin, 198 N.J. 95, 103 (2009). Moreover, "the law grants particular leniency to agreements made in the domestic arena," which consequently gives "judges greater discretion when interpreting such agreements." Guglielmo v. Guglielmo, 253 N.J. Super. 531, 542 (App. Div. 1992).

Additionally, "[a]s a general rule, courts should enforce contracts as the parties intended." Pacifico, supra, 190 N.J. at 266. See also Tessmar v. Grosner, 23 N.J. 193, 201 (1957) (noting that the court's role in interpreting a contract is to enforce the parties' common intent). Moreover, the court is required to "consider what is written in the context of the circumstances at the time of drafting and to apply a rational meaning in keeping with the 'expressed general purpose.'" Pacifico, supra, 190 N.J. at 266 (quoting N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 302 (1953)).

"The polestar of contract construction is to discover the intention of the parties as revealed by the language used by them." Karl's Sales & Serv., Inc., v. Gimbel Bros., Inc., 249 N.J. Super. 487, 492 (App. Div.), certif. denied, 127 N.J. 548 (1991). As such, the court should not re-write a contract or grant a better deal than that for which the parties expressly bargained. Solondz v. Kornmehl, 317 N.J. Super. 16, 21 (App. Div. 1998).

C.

Since the focus of the parties' primary dispute revolves around plaintiff's putative right to share in the benefits flowing from defendant's PFRS pension, we note the governing principles relating to such retirement benefits. We recognize that the equitable distribution of pensions particularly disability pensions is fraught with complications and subtleties. See Larrison, supra, 392 N.J. Super. at 1 (addressing distribution of an ordinary disability retirement allowance awarded to a member of PFRS); Avallone v. Avallone, 275 N.J. Super. 575 (App. Div. 1994) (confronting the problem of equitably distributing a New York state disability retirement pension upon divorce). In both cases, we recognized that a disability retirement allowance has two components: one that represents a retirement allowance and is subject to equitable distribution to the extent attributable to marital efforts, and another that represents compensation for disability and belongs to the disabled spouse alone. Larrison, supra, 392 N.J. Super. at 16-18; Avallone, supra, 275 N.J. Super. at 584; see also Sternesky, supra, 396 N.J. Super. at 298.

In this case, the parties made no effort to carefully explicate the contours or to establish the value of defendant's ordinary disability retirement pension as of the date of the PSSA. Instead, they postponed their battle for equitable distribution until defendant's employment status crystallized. This resulted in a more concentrated dispute over whether a bargain had been struck allowing plaintiff to share in defendant's ordinary retirement pension pursuant to N.J.S.A. 43:16A-5 (minimum of fifty percent of final compensation) if reinstated to duty, regardless of how that pension was obtained. There is no dispute that plaintiff waived her right to equitable distribution in defendant's ordinary disability retirement pension pursuant to N.J.S.A. 43:16A-8 (minimum of forty percent of final compensation). It was this express waiver of the disability-type pension that convinced the Family Part judge to recognize plaintiff's retention of a right to equitable distribution if defendant's "status quo" changed. Indeed, the record firmly supports the view that between 2002 (when the PSSA was executed) and 2007 (when defendant's status changed from receiving an ordinary disability retirement pension into having the potential to receive an ordinary retirement pension at age fifty-five) a shift in defendant's employment status occurred that was fairly contemplated by the PSSA. According to defendant, however, a missing ingredient was left out, which was that this change in employment status did not occur as part of the LAD litigation, as the PSSA supposedly required in order to give rise to further benefits. Thus, according to defendant, because he regained his job through personal efforts unrelated to the LAD litigation, plaintiff is not entitled to share in the future PFRS pension benefits.

We do not subscribe to the crabbed view of the PSSA as suggested by defendant. Instead, we find the more equitable and indulgent understanding of the PSSA as expressed by the Family Part judge to best evince the intention of the parties. At the time of the PSSA's execution, both parties were aware that defendant had already once migrated successfully from a disability-related job separation in 1987 to a restoration of employment in 1991, without the need for litigation. When defendant again was relegated to an ordinary disability retirement status albeit involuntarily it was entirely foreseeable that defendant would mount all reasonable efforts to regain his job. While he initially chose LAD litigation as the modality for that goal, and was knee-deep in that litigational process at the time of the execution of the PSSA, these actions did not disenfranchise plaintiff from enjoying equitable distribution of defendant's restored PFRS ordinary retirement pension if that were to become available in the future as a result of any effort.

Given the litigational uncertainties that were swirling around the parties at the time they were negotiating the PSSA, they might well have settled their matrimonial dispute over pension benefits by a clean break. That is, they could have engaged in the expensive and complicated process outlined in Avallone later confirmed by both Larrison and Sternesky and evaluated the ordinary disability retirement pension of defendant right then and there. Instead, both sides opted to leave the pension calculus inchoate, awaiting a potential change in defendant's "status quo." Although it took much longer than the parties expected, that change came in 2007, and finally triggered plaintiff's entitlement to equitable distribution of the benefits associated with an ordinary retirement pension to which defendant became potentially entitled upon resuming enrollment in the PFRS in October of that year. The Family Part judge's conclusion consistent with the totality of the circumstances was fully sustainable on the record presented to him, and now to us.

For whatever their reasons expediency, expense, or a need for temporary closure the parties elected in 2002 to avoid the excruciatingly complex task of evaluating defendant's then-extant ordinary disability pension. Instead, they contractually gambled on a potential future change in defendant's employment status, expecting the LAD litigation to be the likely vehicle for reinstatement to public employment. The Family Part rightly concluded that the parties through the PSSA did not intend that the LAD case be the exclusive means of achieving that desired reinstatement and it would have been inequitable to so limit it.

Also, although we were not provided with the LAD litigation's pleadings, defendant's counsel indicated at oral argument that the object of the LAD case was to recover defendant's lost back pay, to recoup his pension service credits, and to compel reinstatement as a sergeant on the Irvington police force. See N.J.S.A. 10:5-13; see also N.J.S.A. 10:5-12.1 (restricting remedy to a person required to retire to reinstatement with back pay and limiting availability of remedy to the filing of a complaint with the Attorney General). Although punitive damages may have been sought, an award for future lost earnings was not contemplated. Thus, even defendant saw the LAD action as merely a pragmatic device to bring about his desired goal of returning to a public-sector law enforcement job that would accommodate his physical limitations.

The entitlement that plaintiff waived in 2002 was only an equitable share in the ordinary disability retirement pension that was allegedly foisted upon defendant by the Department at the time of his 1999 termination. This, as reflected in the Family Part's findings, was a recognition of the reduced benefit (forty percent versus fifty percent) defendant was receiving at the time. Also, since the monthly benefit of the ordinary disability retirement pension necessarily contained a portion not subject to equitable distribution pursuant to Avallone and its progeny, plaintiff's theoretical fractionalized share was markedly reduced. Both sides through their PSSA were willing to abide future events regarding defendant's reinstatement quest before apportioning the hoped-for ordinary retirement pension benefits. The Family Part judge correctly explicated this intention of the parties to await reinstatement when he found defendant's PFRS pension was subject to equitable distribution. The court's interpretation in this case is fully consistent with the greater discretion it has been given when interpreting matrimonial agreements, and we will not disturb it.

D.

The Family Part's use of the deferred-distribution method to achieve equitable distribution of the PFRS pension is "actually distribution of an equitable share of a future contingent benefit, the contingency being survival of the pensioner spouse to retirement age." See Claffey, supra, 360 N.J. Super. at 257. "Assuming survival of the pensioner spouse to the date of retirement, the percentage to be so distributed and the amount of the periodic benefit is not known until retirement." Id. at 258. Thus, because the Family Part was apparently concerned about the phenomenon of "when he gets, she gets; when he dies, so does her benefit," id. at 261, it required defendant to protect against a potential forfeiture by funding a life insurance policy as a substitute for the lost incremental pension payouts to plaintiff if defendant were to predecease her.

Although expert witness Deer indicated that protection of this type was commonly deployed voluntarily by parties, we conclude that Larrison counsels against such devices being directly imposed by the Family Part:

Here, defendant's pension plan does not provide for survivor benefits to an ex-spouse. Therefore, if defendant predeceases plaintiff, she will no longer receive her share of his pension benefit. In this light, there is no legal support for the trial court's order directing otherwise.

[Larrison, supra, 392 N.J. Super. at 19.]

Although the pension in Larrison was an ordinary disability retirement pension and defendant's expected pension will be an ordinary retirement pension, the basic principle that ex-spouses do not enjoy survivor benefits in a PFRS pension applies regardless of the type of pension benefits received. We decline to depart from Larrison on this record. Thus, although understandably well-intentioned at least from Deer's point of view the Family Part was mistaken in ordering defendant to adjust his life insurance's beneficiary and in allocating $10,000 to plaintiff to purchase a separate life insurance policy. This issue must be remanded to the Family Part for the entry of an order requiring plaintiff, if she has already received the $10,000, to repay it to defendant without interest within a reasonable period, or if plaintiff has not yet obtained the $10,000, that it be distributed without interest to defendant forthwith.

E.

Finally, defendant contends that the Family Part erred in awarding plaintiff $2,500 in interim counsel fees, plus an additional $22,000 in counsel fees and costs to be paid from the proceeds of the sale of the marital property.

N.J.S.A. 2A:34-23 authorizes a court to make monetary awards for legal fees and costs in a divorce action "when the respective financial circumstances of the parties make the award reasonable and just." This is a flexible standard, where counsel fees are awarded at the trial judge's discretion. Boardman v. Boardman, 314 N.J. Super. 340, 349 (App. Div. 1998). In determining whether such an award is proper, the court "shall consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party." N.J.S.A. 2A:34-23. Rule 4:42-9(a)(1) provides that fees may be awarded to any party in a family action, pursuant to Rule 5:3-5(c), which requires that the court consider a multitude of factors, specifically: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.

Absent a clear abuse of discretion, a trial court's award of counsel fees should not be disturbed. Chestone v. Chestone, 285 N.J. Super. 453, 468 (App. Div. 1995). Essentially, in fashioning an award, the court's main focus must be on "the requesting party's need, the other party's ability to pay, and the good and bad faith of each party." Boardman, supra, 314 N.J. Super. at 349. Bad faith includes an "unwillingness or intransigence" during litigation to "fairly negotiate" an equitable distribution of the marital property, "intentional noncompliance with court-ordered obligations[,]" the pursuit of relief which one knew or should have known that he or she was not reasonably entitled to under the facts or law, the "intentional misrepresentation of facts or law" to avoid or unfairly limit equitable distribution or alimony, and "vexatious" or "wanton" acts or acts "carried out for oppressive reasons." Borzillo v. Borzillo, 259 N.J. Super. 286, 293-94 (Ch. Div. 1992).

We are thoroughly satisfied that notwithstanding defendant's successful appeal of the life insurance issue clearly secondary to the primary issue of the equitable distribution of defendant's potential ordinary retirement pension benefits the record amply supports the Family Part judge's award of counsel fees and costs, and the reasons outlined therein were sufficiently articulated. The judge was thoroughly familiar with the issues, having guided the case over several years, and was well aware of the respective positions and conduct of the parties. He did not abuse his abundant discretion in this matter.

In summary, all orders are affirmed except for the provisions relating to life insurance, which are reversed and remanded for the entry of an order in accordance with this opinion. We do not retain jurisdiction.

Affirmed in part; reversed in part; and remanded.

 

We assume that this payment was calculated by the PFRS pursuant to N.J.S.A. 43:16A-6(2), which provides a benefit of a minimum of forty percent of the pensioner's final compensation.

 

N.J.S.A. 10:5-1 to -49.

The judgment refers to an "Interspousal Agreement, marked J-1 in Evidence," which we assume is the PSSA.

The PSSA gave plaintiff a "right of first refusal to buy out Husband's interest in the former marital home at any time prior to the children's emancipation."

Gorman often appears in cases involving issues relating to PFRS pensions. See Sternesky v. Salcie-Sternesky, 396 N.J. Super. 290 (App. Div. 2007); Larrison v. Larrison, 392 N.J. Super. 1 (App. Div. 2007); Claffey v. Claffey, 360 N.J. Super. 240 (App. Div. 2003); State v. Cordoma, 372 N.J. Super. 524 (App. Div. 2004).

Aster is plaintiff's attorney in this current appeal.

This method of effecting an equitable distribution of defendant's PFRS pension is referred to as "a deferred distribution." See Claffey, supra, 360 N.J. Super. at 255. The other two methods are referred to as "a present value offset distribution" and "a partial deferred-distribution award." Id.

Defendant limited his appeal of the October 28, 2008 order to only "the $2,500 counsel fee award."

Defendant claims to be aggrieved by the entry of this order by referring to it in footnote 10 of his appellate brief. However, defendant has never filed an amended notice of appeal indicating that he now seeks review of the September 8, 2009 order. In light of defendant's statement elsewhere in his appellate brief that "[d]efendant has appealed from the trial court's Order of July 29, 2009," we decline to address the September 8, 2009 order. Only those orders or parts thereof that are designated in the notice of appeal are subject to the appeal process and review. See, e.g. Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994); Campagna v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001); Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied, 174 N.J. 544 (2002); 1266 Apt. Corp. v. New Horizon Deli, 368 N.J. Super. 456, 459 (App. Div. 2004).

(continued)

(continued)

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A-6354-08T2