WAYNE M. SMITH v. ALICIA M. SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

WAYNE M. SMITH,

Plaintiff,

v.

ALICIA M. SMITH,

Defendant-Respondent/

Cross-Appellant,

v.

ESTATE OF WAYNE M. SMITH

AND JUDI SMITH (ADMINISTRATOR),

Third-Party Defendants-

Appellants/Cross-Respondents.

___________________________________

September 1, 2015

Argued November 17, 2014 Decided

Before Judges Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1297-98.

Ronald G. Lieberman argued the cause for appellants/cross-respondents Estate of Wayne Smith and Judi Smith (Adinolfi and Lieberman, P.A., attorneys; Mr. Lieberman, of counsel and on the briefs).

Alan H. Schorr argued the cause for respondent/cross-appellant Alicia M. Smith (Alan H. Schorr & Associates, P.C., attorneys; Mr. Schorr, on the brief).

PER CURIAM

This post-judgment matrimonial matter involves a dispute between defendant Alicia M. Smith (Alicia),1 the ex-wife of decedent Wayne M. Smith (Wayne), and Wayne's subsequent wife, third-party defendant Judi Smith (Judi), over payment of alimony arrears from the survivor annuity of Wayne's military pension (the pension annuity). Judi appeals from the September 27, 2013 Family Part order, which imposed a constructive trust on pension annuity payments she received after Wayne's death and required her to make payments to Alicia. Judi also appeals from the October 8, 2013 order, which awarded Alicia counsel fees, and Alicia cross-appeals from that order. For the following reasons, we affirm the September 27, 2013 order, vacate the October 8, 2013 order and remand for reconsideration of counsel fees.

I.

We derive the following facts from the record. Wayne and Alicia were married in 1971, and divorced in 1999. Alicia was disabled at the time of the divorce and was receiving disability benefits and Wayne was retired from the military and receiving his military pension. The parties' stipulation of settlement (SOS), incorporated in their dual final judgment of divorce (DFJOD), required Wayne to pay Alicia permanent alimony in the amount of $200 per week until his death, her death, or her re-marriage or cohabitation with an unrelated male. The SOS required Wayne to make all alimony payments through the Camden County Probation Department.

Pursuant to the SOS, Wayne received one hundred percent of the military pension, with Alicia receiving a credit in the amount of $42,750 against other marital assets subject to equitable distribution. At the time of the divorce, Wayne deferred making an election of a survivor beneficiary for the pension annuity.

In 2000, Alicia filed a motion in aid of litigant's rights after Wayne became in arrears in alimony. In a July 28, 2000 order, the court ordered Wayne to pay all alimony arrears, but did not set an amount. The court later set the arrears at $14,418 and ordered Wayne to make payment through the probation department at the rate of $15 per week, effective May 2, 2002. On July 3, 2002, Alicia obtained a judgment against Wayne in the amount of $14,418.

In September 2006, Wayne was denied a passport because of his alimony arrears. After mentioning this to Alicia, the two entered into a post-judgment agreement whereby Alicia agreed to remove payment of the alimony arrears through the probation department to enable Wayne to obtain a passport and Wayne agreed to designate her as the survivor beneficiary of the pension annuity (the post-judgment agreement). In a certification later submitted to the court, Wayne confirmed the post-judgment agreement, stating, "I then told [Alicia] that if she did drop [the arrears], I would leave her as beneficiary of my pension until the arrears were paid off, so if anything happened to me, then she would get her money."

In connection with the post-judgment agreement, Wayne prepared and signed a form entitled "Data for Payment of Retired Personnel" (the DPRP Form), electing Alicia and the parties' three children as equal survivor beneficiaries of the pension annuity and writing the word "wife" in the box entitled "relationship." Wayne separately elected Alicia as the sole beneficiary under the Armed Forces Survivor Benefit Plan (SBP) annuity,2 elected coverage for "spouse only," and again wrote the word "wife" in the box entitled "relationship." Alicia signed the DPRP Form under the box entitled "Spouse."3 She also executed and submitted to the State court a document removing payment of the alimony arrears through the probation department. In September 2006, Wayne and Alicia went together to the Cape May Coast Guard Base and submitted the DPRP Form.

In November 2010, Wayne was diagnosed with stage four lung cancer. He married Judi in January 2011, and the two moved to Florida. In June 2011, he stopped paying alimony. In August 2011, Wayne filed a motion to terminate alimony, claiming, in part, that Alicia was cohabitating with an unrelated male. He also requested the court's permission to change the beneficiary of the pension annuity to Judi; however, he did not reveal that he had already done so in March 2011.

Alicia filed a cross-motion for an order enforcing Wayne's alimony obligation, awarding her an increase in alimony, and compelling payment of the alimony arrears. Prior to disposition of the motions, in October 2011, Wayne executed a Last Will and Testament in Florida, naming Judi as executrix of his estate, devising all of his tangible property to her, and providing that "[a]ny compensation from ongoing or future claims and/or benefits shall be distributed to [her]."

In a November 14, 2011 order, the court denied Wayne's motion without prejudice, including his request to change the beneficiary. The court denied Alicia's request for an increase in alimony, but ordered Wayne to continue paying alimony in the amount of $408 per month plus $15 towards the arrears through the probation department. The court also ordered Wayne to pay Alicia $2040 for missed alimony payments from June 2011 through October 2011, plus $5258 for the remaining alimony arrears. In the event of non-payment of the arrears, the order placed a lien on Wayne's pension "for any alimony arrears, which shall be paid by execution directly against [Wayne's pension]."

On December 26, 2011, Wayne filed an appeal. He died several days later on January 6, 2012, without re-electing Alicia as the survivor beneficiary of the pension annuity. As a result, commencing February 2012, Judi, not Alicia, began receiving pension annuity payments in the net amount of $505.87 per month.

On March 13, 2012, Alicia filed an order to show cause (OTSC), seeking to join Judi as a third-party defendant and restrain her from using the pension annuity payments she received in February and March 2012, among other relief. The court entered an OTSC on March 15, 2012, joining Judi as a third-party defendant, entering temporary restraints against her, and requiring her to turn over all pension annuity payments she received to Alicia's attorney to be held in escrow. The court also ordered the Defense Finance and Accounting Services (DFAS) of the United States Military Retired Pay Department to continue disbursing monthly pension annuity payments to Judi, and ordered Judi to turn over the payments to Alicia's attorney to be held in escrow.

On April 16, 2012, the appeal was withdrawn after a conference with a judge from the Civil Appeals Settlement Program (CASP). On April 26, 2012, the return date of the OTSC, the court entered an order joining Wayne's estate as a third-party defendant and ordering the estate to turn over the pension annuity payments to Alicia's attorney to be held in escrow pending an appeal. The order reserved Alicia's right to seek attorney's fees for the OTSC, among other things. Thereafter, Judi sent Alicia's attorney $1,517.61, representing three pension annuity payments she had received for February, March, and April 2012, each in the amount of $505.87. Although Judi had never probated Wayne's Will, and misrepresented to the court that she had done so, on June 1, 2012, she filed an appeal from the November 14, 2011 and April 26, 2012 orders as executrix of the estate.

Judi did not disclose that sometime prior to May 3, 2012, she elected to receive survivor benefits from the Department of Veterans Affairs (VA), known as Dependency and Indemnity Compensation (DIC),4 which resulted in the termination of the pension annuity. She also never disclosed that she had received a notice, dated May 3, 2012, from the DFAS that she would receive a "new benefit," from the VA, known as the Special Survivor Indemnity Allowance, which was payable to all pension annuitants whose annuity was offset because they were receiving DIC. The DFAS explained that the "new benefit" became payable to Judi on the effective date she was awarded DIC,5 and she would receive no further pension annuity payments because the amount of the DIC payment exceeded the amount of the pension annuity payment. Nevertheless, an "annuitant account statement," dated May 23, 2012, which Judi also received and did not disclose, indicated that she was still receiving pension annuity payments in the amount of $505.87 per month.

Unaware of Judi's actions, on June 22, 2012, Alicia's attorney, Alan H. Schorr, wrote to Judi's attorney, Thomas J. Hurley, advising that he had not received pension annuity payments for May and June 2012. Hurley did not respond until July 24, 2012, when he advised Schorr for the first time that Judi was receiving the "new benefit" and the pension annuity no longer existed.

In a July 24, 2012 letter to Hurley, Schorr asserted that the DFAS's May 3, 2012 notice to Judi did not concern the pension annuity, but rather, concerned a new VA benefit, to which Alicia made no claim, and the new benefit was different from, and in addition to, the pension annuity. Schorr noted that according to the May 3, 2012 "annuitant account statement," it appeared that the pension annuity still existed because Judi continued receiving monthly pension annuity payments in the amount of $505.87. He demanded payment and also requested Judi's social security number so that he could contact the DFAS for more information. He advised Hurley that although Alicia was willing to settle the matter, "[w]e must . . . both be working with the same facts."

In a July 25, 2012 letter to Hurley, Schorr again demanded Judi's social security number to enable him to "ascertain the facts behind the alleged loss of the [pension] annuity." Schorr asserted that "[i]t appears that [Judi] may have made an election not to receive the [pension] annuity in lieu of different benefits," and warned that "in light of [the November 14, 2011] order that the beneficiary was not to be changed, that would leave [Judi] with serious liability to [Alicia]."

Interpreting Schorr's July 24, 2012 letter to be a waiver of any claim by Alicia to the pension annuity and VA benefits, Hurley filed a stipulation of dismissal of the appeal. In an August 3, 2012 order, this court dismissed the appeal with prejudice.

On July 22, 2013, Alicia filed a motion to enforce the April 26, 2012 order, claiming that her failing health and dire financial circumstances prevented her from filing earlier. She sought various relief, including imposing a constructive trust on the pension annuity payments Judi was receiving, awarding her alimony arrears, and awarding her counsel fees in the amount of $4525 for the OTSC plus counsel fees for the present motion.

The court found that Wayne and Alicia entered into the post-judgment agreement separate and apart from the DFJOD to resolve the alimony arrears, and that under the agreement Alicia was to be the beneficiary of the pension annuity. The court determined that Schorr's July 24, 2012 letter did not constitute a waiver of Alicia's right to the pension annuity or VA benefits, and that Alicia did not otherwise waive that right. The court found that Judi took affirmative steps to terminate the pension annuity by electing to receive the VA benefits, and that her actions violated prior orders.

In awarding counsel fees, the court found that Judi's conduct was "at best improper" and constituted bad faith. The court also found that Alicia incurred the fees to enforce the prior orders and that because Judi was receiving the VA benefits, she was in a better position financially than Alicia to pay counsel fees.

In a September 27, 2013 order, the court ordered as follows, in pertinent part

A constructive trust is ordered on the . . . [p]ension payments [made] to . . . Judi [and Judi] shall pay to . . . Alicia, $505.87 per month [from the money Judi] receive[s] from any [VA] benefit or other government benefit, survivor benefit by or derivative benefit from Wayne. . . . Payments shall be issued to . . . Schorr on behalf of . . . Alicia. A constructive trust shall be imposed and said monies shall be payable to Alicia . . . pursuant to the November 14, 2011 and April 26, 2012 orders of the court.

Judi . . . shall pay the sum of $7,588.05 to . . . Schorr over a period of fifteen (15) months in equal monthly installments, representing [pension annuity] payments [Judi] received between August, 2012 and the present, which should have been paid to Alicia . . . under the prior court orders.

Mistakenly believing that counsel fees had previously been awarded, the court denied Alicia's request for fees for the OTSC, but granted her request for attorney's fees for the present motion.

Alicia's attorneys subsequently submitted a certification of services, requesting counsel fees in the amount of $9,591.74 for the motion. In an oral opinion, the judge reviewed the certification of services, found the hourly rates charged were reasonable, but excluded fees for services unrelated to the motion as well as fees for services he deemed unnecessary or inappropriate. In an October 8, 2013 order, the judge awarded Alicia counsel fees in the amount of $3820. Alicia does not challenge that award in this appeal; she only challenges the denial of her request for counsel fees in the amount of $4525 for the OTSC.

II.

As a threshold matter, we first address Alicia's contention that Judi lacks standing to appeal from the November 14, 2011 order because she was never appointed executrix of Wayne's estate. We note, however, that Judi does not appeal from the November 14, 2011 order -- she appeals from the September 27, 2013 and October 8, 2013 orders. For the reasons that follow, we conclude she has standing to appeal from the September 27 and October 8 orders.

Generally, to have standing, a party must be a "real party in interest," or an "executor [or] administrator . . . in whose name a contract has been made for the benefit of another." R. 4:26-1. To be a "real party in interest," generally the litigant must have "'a sufficient stake and real adverseness with respect to the subject matter of the litigation [and a] substantial likelihood of some harm . . . in the event of an unfavorable decision.'" Courier-Post Newspaper v. Cnty. of Camden, 413 N.J. Super. 372, 381 (App. Div. 2010).

However, under N.J.S.A. 3B:3-18 and N.J.S.A. 3B:10-19, an executor lacks standing in litigation involving the estate until the will has been probated. Levchuk v. Jovich, 372 N.J. Super. 149, 159 (Law Div. 2004); Olsson v. Dir., Div. of Taxation, 6 N.J. Tax 430, 435-36 (Tax 1984); Pressler & Verniero, Current N.J. Court Rules, comment 4 to R. 4:26-1 (2015). An executor has the capacity to initiate a lawsuit on behalf of a decedent's estate, but the status as a party in interest "does not mature until probate is accomplished." Levchuk, supra, 372 N.J. Super. at 159.

Despite the general rule requiring a will to be probated, our Supreme Court has noted that "anomalous results . . . might occur when the statutes governing equitable distribution and divorce collide with the statutes that make up [the] probate code." Kay v. Kay, 200 N.J. 551, 554 (2010), aff'g 405 N.J. Super. 278, 284 (2009) (holding that to absolutely prohibit an estate's assertion of equitable claims against a surviving spouse "is in tension with general principles governing the exercise of a court's inherent equitable jurisdiction"). Although an executor may not have mature authority to file a suit on behalf of the estate, such prohibition may result in the court's inability to evaluate the equities or legal rights of the parties. Id. at 553. Ultimately, "depriving the estate of the opportunity to pursue its claim for relief would not serve the policy of promoting equity and fair dealing as between spouses." Id. at 552-53.

Here, despite her misrepresentation to the court, Judi never submitted Wayne's Will to probate, and thus, lacked authority to act on behalf of the estate. However, consistent with the Supreme Court's affirmance in Kay, prohibiting Judi from asserting her individual equitable claims would be "in tension with general principles governing the exercise of a court's inherent equitable jurisdiction." Kay, supra, 405 N.J. Super. at 284. Judi did not initiate an action on behalf of the estate; rather, she was joined individually as a third-party as a result of Alicia's OTSC application. The OTSC granted the court authority to direct the order to "all persons in interest, including . . . the persons who would have an interest, as executor or beneficiary under a will of the absentee." R. 4:93-3. Accordingly, Judi entered the litigation not as an unauthorized executrix attempting to assert a claim on behalf of Wayne's estate, but as a person who had an interest as an executrix or beneficiary under Wayne's Will. She, thus, had standing to appeal.

As a threshold matter, we also address Alicia's contention that res judicata bars an appeal from the November 14, 2011 and April 26, 2012 orders.

If an issue raised in an appeal has been determined on the merits in a prior appeal, it cannot be re-litigated in a later appeal of the same case, even if of constitutional dimension. State v. Cusick, 116 N.J. Super. 482, 485 (App. Div. 1971). The principle of res judicata "prevent[s] the same claims involving the same parties from being filed and brought before a court repeatedly." Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 39 (2013). An application may be barred if it is

similar or substantially similar to a prior application, the application involves the same parties or parties in privity with them, there are no substantial changes in the current application or conditions affecting the property from the prior application, there was a prior adjudication on the merits of the application, and both applications seek the same relief[.]

[Id. at 39-40.]

Even assuming that Judi is appealing from the November 14, 2011 and April 26, 2012 orders, res judicata does not apply. Although all of the motions and orders in this case concerned the pension annuity, only the September 27, 2013 and October 8, 2013 orders, from which Judi appeals, imposed a constructive trust on the pension annuity payments and compelled Judi to make payments from any VA benefit or other government benefit or derivative benefit from Wayne. This difference clearly reflects the new issues concerning the termination of the pension annuity resulting from Judi's selection of the VA benefits. These issues arose after entry of the November 14, 2011 and April 27, 2012 orders, and were not raised or adjudicated on the merits in the prior appeals. Similarly, the October 8, 2013 order involved a request for attorney's fees incurred after entry of the November 14, 2011 and April 26, 2012 orders. Because this appeal concerns new orders and new issues, res judicata does not bar the appeal.

III.

Judi's primary contention, raised for the first time on appeal, is that Alicia was entitled to no relief because she committed fraud in signing the DPRP Form as Wayne's "spouse." We generally decline to address issues, such as this, that were not raised before the trial court and are not jurisdictional in nature or substantially implicate the public interest. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Nevertheless, we address this meritless contention for the sake of completeness.

To prove equitable fraud, Judi must show by clear and convincing evidence that Alicia made a misrepresentation on which Wayne detrimentally relied. Jewish Ctr. of Sussex Cnty. v. Whale, 86 N.J. 619, 624-25 (1981). To prove legal fraud, Judi must also show by clear and convincing evidence that Alicia knew her misrepresentation was false and intended for Wayne to detrimentally rely on it. Ibid.

There was no proof in this case, let alone clear and convincing proof, that Alicia committed any fraud. Alicia made no fraudulent misrepresentation whatsoever on which Wayne detrimentally relied in electing her as the survivor beneficiary of the pension annuity. To the contrary, Wayne was well-aware when he voluntarily prepared, signed and submitted the DPRP Form that he and Alicia were divorced and she was not his wife. The misrepresentation that Alicia was his wife was his, not Alicia's.

In any event, the alleged misrepresentation was immaterial. Alicia was entitled to receive the pension annuity as Wayne's former spouse, see generally 10 U.S.C.A. 1448(b), 10 U.S.C.A. 1450 and 10 U.S.C.A. 1451, and Wayne was entitled to elect her as a beneficiary as his former spouse. See 10 U.S.C.A. 1448(b)(2)(A) (providing that "[a] person who has a former spouse upon becoming eligible to participate in the [SBP] may elect to provide an annuity to that former spouse").

There was no time limit for Wayne to make an election to provide an annuity to Alicia as his former spouse under 10 U.S.C.A. 1448(b)(2).6 To make the election Wayne merely had to "provide the Secretary concerned with a written statement (in a form to be prescribed by that Secretary and signed by such person and the former spouse) setting forth" how the election was being made. 10 U.S.C.A. 1448(b)(5). Wayne submitted the DPRP Form, as required, electing Alicia as beneficiary of the pension annuity. That election prevented payment of the annuity to Judi, unless Wayne changed the election in accordance with the provisions of 10 U.S.C.A. 1450(f). See 10 U.S.C.A. 1448(b)(2)(B) (providing that "[i]n the case of a person with a spouse . . . such an election prevents payment of an annuity to that spouse . . .").

Wayne could have changed his election to provide the annuity to Judi, but Alicia had to be notified of the change. 10 U.S.C.A. 1450(f)(1)(A)-(B). Because the election was made incident to a divorce proceeding, there were further limitations on Wayne's ability to change it

In a case in which . . . an agreement to make the election has been incorporated in or ratified or approved by a court order, the person [must] furnish[] to the Secretary concerned a certified copy of a court order which is regular on its face and which modifies the provisions of all previous court orders relating to such election, or the agreement to make such election, so as to permit the person to change the election; and certif[y] to the Secretary concerned that the court order is valid and in effect.

[10 U.S.C.A. 1450(f)(2)(A).]

If anyone committed a fraud here, it was Wayne, who falsely misrepresented that Alicia was still the beneficiary of the pension annuity and changed the beneficiary to Judi without notice to Alicia, as required by 10 U.S.C.A. 1450(f)(1)(B). More importantly, the November 14, 2011 order ratified and approved the post-judgment agreement to make Alicia a beneficiary of the pension annuity and imposed a lien on the annuity in the amount of any alimony arrears. Because there was no court order modifying the November 14, 2011 order, Wayne could not have changed the beneficiary. Because the change was made, we presume that Wayne procured the change fraudulently.

Nor is Judi an innocent party. She concealed that she had elected the VA benefits, which terminated the pension annuity as of May 2012, shortly after entry of the April 26, 2012 order. She also refused to provide her social security number, which would have enabled Alicia to investigate what happened to the pension annuity, and she violated Alicia's right to the pension annuity under the November 14, 2011 and April 26, 2012 orders. In our view, the court understated Judi's actions to be "at best improper" or constituting bad faith.

IV.

Judi contends that because Schorr's July 24, 2013 letter waived any claim Alicia had to the pension annuity and VA benefits, the court erred in failing to estop Alicia from asserting a claim against Judi. We disagree.

Our review of a trial court's fact-finding in a non-jury case is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "'The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility.'" Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). We "should not disturb the factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (internal quotation marks omitted). However, we owe no deference to a trial court's interpretation of the law, and review issues of law de novo. State v. Parker, 212 N.J. 269, 278 (2012); Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 193 (App. Div. 2008), certif. denied, 199 N.J. 129 (2009). We also review mixed questions of law and fact de novo. In re Malone, 381 N.J. Super. 344, 349 (App. Div. 2005).

Equitable estoppel is defined as the "effect of the voluntary conduct of a party whereby [she] is absolutely precluded . . . from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct, and has . . . change[d] [her] position for the worse." Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 189 (2013) (quoting Heuer v. Heuer, 152 N.J. 226, 237 (1998)). To establish equitable estoppel, a prejudiced party must show that the opposing party "'engaged in conduct, either intentionally or under circumstances that induced reliance, and that [he or she] acted or changed their position to their detriment.'" Ibid. (quoting Knorr v. Smeal, 178 N.J. 169, 178 (2003)).

There is ample credible evidence in the record supporting the court's finding that Schorr's July 24, 2012 letter did not constitute a waiver of any claim Alicia had to the pension annuity or that Alicia otherwise waived her claim. A plain reading of the letter confirms that Alicia maintained her right to the pension annuity and to the relief granted by the November 14, 2011 and April 26, 2012 orders. Neither Alicia nor Schorr did anything to warrant the application of equitable estoppel in this case. Any argument to the contrary simply lacks merit.

V.

Judi contends for the first time on appeal that the court erred in requiring her to pay Alicia from the VA disability benefits. She argues that disability benefits are not subject to equitable distribution under Mansell v. Mansell, 490 U.S. 581, 109 S. Ct. 2023, 104 L. Ed. 2d 675 (1989), and Whitfield v. Whitfield, 373 N.J. Super. 573 (App. Div. 2004).7 This contention lacks merit.

In Mansell, the Court held that state courts lacked authority "to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans' disability benefits." Mansell, supra, 490 U.S. at 594-95, 109 S. Ct. at 2032, 104 L. Ed. 2d at 689. Thus, former spouses, without their consent, can be denied a fair share of their ex-spouse's military pension when the ex-spouse elects to convert the pension into disability benefits. Id. at 595, 109 S. Ct. at 2032, 104 L. Ed. 2d at 689 (O Connor, J., dissenting).

Mansell does not apply here. Wayne's election of Alicia as a beneficiary of the pension annuity was not made as part of equitable distribution; it was made post-judgment to secure payment of alimony arrears. The court did not award the pension annuity to Alicia as marital property, but merely enforced the post-judgment agreement for payment of alimony arrears. See Whitfied, supra, 373 N.J. Super. at 582 (holding that when "[t]he issue is one of enforcement of a prior equitable distribution award, not a preset dissolution of assets," there is no potential violation of Mansell). Thus, Mansell did not preclude the court from securing Wayne's alimony arrears obligation by requiring payment from the VA benefits.

Rather, this case reflects the situation addressed in Whitfield, where we held that the court had authority to require a husband to compensate his wife directly for the decrease in his pension occasioned by his voluntary election of disability benefits post-divorce. Whitfield, supra, 373 N.J. Super. at 575. There, after a divorce judgment awarded the wife a portion of the husband's military pension, the husband unilaterally waived a portion of the pension and elected to receive disability benefits for an injury sustained while on active duty. Id. at 576. We held that the court did not exceed its authority by enforcing the equitable distribution award of the parties' final judgment of divorce. Id. at 575. Specifically, we remarked as follows

[W]hile the State court does not have the power to treat as a divisible marital asset the portion of retirement pay waived by the retiree in obtaining veterans' disability benefits, that does not mean that other adjustments to the judgment cannot be made when such disability payments commence and reduce one spouse's receipts from his or her share of the other spouse's pension or retirement benefits. . . . [W]aiver of pension monies while receiving disability pay had a substantial adverse impact on [wife's] equitable distribution which constituted exceptional and compelling circumstances requiring an award to his wife of an increased percentage of [husband's] remaining pension payments or some other adjustment to the equitable distribution.

[Id. at 580 (third and fourth alterations in original) (internal quotation marks omitted) (quoting Mansell, supra, 490 U.S. at 583, 109 S. Ct. 2023, 104 L. Ed. 2d 675; Torwich v. Torwich, 282 N.J. Super. 524, 529 (App. Div. 1995)).]

Here, Judi was not seeking to prevent enforcement of what would have been a prohibited division of military pension benefits under Mansell; she sought to preclude Alicia from enforcing a post-divorce agreement regarding military pension benefits. The post-divorce agreement makes this case even more removed from the actual judicial act of equitably dividing assets, thus making the Whitfield holding even more applicable. Accordingly, we reject Judi's argument that the court lacked authority to require her to pay Alicia from the converted VA disability benefits.

VI.

Finally, Judi contends for the first time on appeal that: (1) the doctrine of laches applies to Alicia's last motion; (2) the court improperly re-wrote the DFJOD to give Alicia an interest in Wayne's military pension; and (3) the court erred in failing to hold a plenary hearing on the last motion.8 We have considered these contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we make the following brief comments.

The doctrine of laches "is invoked to deny a party enforcement of a known right when the party engages in an inexcusable and unexplainable delay in exercising that right to the prejudice of the other party." Knorr, supra, 178 N.J. at 180-81. "Laches may only be enforced when the delaying party had sufficient opportunity to assert the right in the proper forum and the prejudiced party acted in good faith believing that the right had been abandoned." Id. at 181. "The core equitable concern in applying laches is whether a party has been harmed by the delay." Ibid.

We are satisfied that Alicia's delay in filing the last motion was excusable given her claimed health and financial circumstances. More importantly, Judi did not act in good faith and has not shown any prejudice or harm by the delay.

The court did not re-write the DFJOD, as it did not transfer or alter Wayne's right to his pension. The court merely enforced Wayne's post-judgment agreement to voluntarily transfer the pension annuity to Alicia in order to satisfy his alimony arrears. Wayne always had the right to, and maintained control over, his pension during his lifetime, and he was free to do with it as he wished. See e.g. Mendell v. Mendell, 162 N.J. Super. 469, 476-77 (App. Div. 1978) (rejecting a post-judgment agreement for the transfer of an asset to which the husband had no right of equitable distribution). Wayne voluntarily agreed to make Alicia a beneficiary of the pension annuity in order to satisfy any alimony arrears after his death. Judi does not and, given Wayne's certified admission, cannot assert that the post-judgment agreement was invalid or unenforceable.

Because there was no question that neither Schorr nor Alicia waived Alicia's right to the pension annuity, there was no need for a plenary hearing. Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004). There can be no plausible dispute that the post-judgment agreement was enforceable, that Wayne voluntarily elected Alicia as the beneficiary of the pension annuity, that Wayne voluntarily filed the DPRP Form confirming that election, and that Alicia did not waive her right to the pension annuity or the relief granted under the November 14, 2011 and April 26, 2012 orders. But for Judi's bad faith in electing the VA benefits, Alicia would have continued receiving the pension annuity payments to the extent of the alimony arrears. She was entitled to that money and should receive it.

VII.

We now address the counsel fees issue. Judi contends that the court erred in awarding Alicia counsel fees, and Alicia contends that the court erred in failing to award counsel fees for the OTSC. We agree with Alicia.

An award of counsel fees is within the discretion of the trial court and will not be overturned unless there is a clear abuse of discretion or a clear error in judgment. Harte v. Hand, 433 N.J. Super. 457, 465-66 (App. Div. 2013). An abuse of discretion "arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002).

The setting of an award of counsel fees in a matrimonial action is controlled by Rule 5:3-5(c) and N.J.S.A. 2A:34-23. When reviewing an application for counsel fees, the court must "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. In a family action, Rule 4:42-9(a)(1) authorizes the award of counsel fees and refers to Rule 5:3-5(c), which provides that a court should consider the following factors

(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.

[R. 5:3-5(c).]

While the financial circumstances of the parties is a very significant factor, if a party is found to have acted in bad faith, relative economic positions have less relevance. Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000).

We discern no abuse of discretion in the court's decision to award Alicia counsel fees for the last motion. The court found, and we agree, that Judi acted in bad faith, Alicia incurred counsel fees as a result of Judi's actions, and Judi had the financial ability to pay. However, the court mistakenly declined to award counsel fees for the OTSC, which had been reserved in the April 26, 2012 order. Thus, we vacate the October 8, 2013 order and remand for consideration of counsel fees for the OTSC.

Affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 We use first names to identify the parties for ease of reference.

2 The SBP "is similar to life insurance in that service members or military retirees who are eligible and who choose to participate have premiums deducted from their paychecks. If a service member or retiree chooses to participate in SBP by having these premiums deducted, his family receives SBP payments after he dies." Sharp v. United States, 80 Fed. Cl. 422, 425 (Fed. Cl. 2008).

3 There DPRP Form contained no box entitled "Former Spouse."

4 DIC is a tax-free benefit paid to the families of military service members or retirees who die while on active duty or while suffering from a service-connected disability. Sharp, supra, 80 Fed. Cl. at 425. Service members do not pay premiums for DIC, and payments to the service member's survivors are automatic. Ibid.

5 The record does not reveal when Judi applied for and was awarded DIC; however, we can fairly assume that the application and award occurred prior to May 3, 2012, and presumably prior to entry of the April 26, 2012 order.

6 Judi argues, incorrectly, for the first time on appeal that Alicia was time-barred under 10 U.S.C.A. 1450(f)(3)(C) from requesting to be elected as beneficiary of the pension annuity. 10 U.S.C.A. 1450(f)(3)(A) provides that if a person was required to provide an annuity to a former spouse under 10 U.S.C.A. 1448(b) and failed or refused to do so, "such person shall be deemed to have made such an election if the Secretary concerned receives . . . [a] written request . . . from the former spouse . . . requesting that such an election be deemed to have been made" along with a copy of a court order or other official statement, which required such an election. 10 U.S.C.A. 1450(f)(3)(A). The former spouse must submit such a request "within one year of the date of the court order or filing involved." 10 U.S.C.A. 1450(f)(3)(C). Wayne was not required by court order to provide an annuity to Alicia; he voluntarily chose to do so. Consequently, 10 U.S.C.A. 1450(f)(3)(C) does not apply.

7 Judi also cites to Landwehr v. Landwehr, 111 N.J. 491 (1988) and Avallone v. Avallone, 275 N.J. Super. 575, 580-81 (App. Div. 1994), both of which are factually distinguishable. Landwehr, supra, concerned the equitable distribution of settlement proceeds obtained during the marriage, which is not the case here. 111 N.J. at 501-02. Also, unlike here, in Avallone, the final judgment of divorce awarded the wife a portion of the husband's pension, which the husband converted into disability benefits post-judgment, and which we found the wife could reach. Avallone, supra, 275 N.J. Super. at 576.

8 Judi also contended that the court altered the law on alimony by awarding Alicia posthumous alimony. However, at oral argument of this appeal, Alicia's attorney conceded that Alicia was not entitled to alimony after Wayne's death. In any event, the post-judgment agreement made Alicia a beneficiary of the pension annuity only for the unpaid alimony arrears, not for future alimony.