MICHAEL GOLISZESKI v. SHARON GOLISZESKI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1239-05T51239-05T5

MICHAEL GOLISZESKI,

Plaintiff-Appellant,

v.

SHARON GOLISZESKI,

Defendant-Respondent.

__________________________________

 

Argued June 14, 2006 - Decided June 30, 2006

Before Judges Wefing and Coburn.

On appeal from Superior Court of New

Jersey, Chancery Division-Family Part,

Middlesex County, No. FM-12-1696-98.

Angela F. Fiore argued the cause for appellant

(Frank E. Tournour, attorney; Ms. Fiore,

on the brief).

No brief was submitted on behalf of respondent.

PER CURIAM

Plaintiff appeals from a post-judgment order entered on September 27, 2005, directing plaintiff to roll over $26,332.90 to defendant's Individual Retirement Account ("IRA"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

The parties were married in 1984 and divorced pursuant to a judgment of divorce entered on December 16, 1998. In connection with their divorce, the parties negotiated a property settlement agreement, a copy of which was attached to the judgment of divorce. Paragraph 3.5 of that property settlement agreement provided that plaintiff would roll over into defendant's IRA "an amount equal to one-half of the then account balance" in his account under his employer's profit-sharing plan.

The parties subsequently disputed the interpretation of this language. At the time the property settlement agreement was executed in November 1998, plaintiff had not yet received his profit-sharing distribution for 1998; he, therefore, maintained defendant was not entitled to any portion of it. In July 1999, the trial court entered an order reflecting its conclusion that defendant was entitled to that portion of the distribution earned prior to February 24, 1998, when the complaint for divorce was filed, and plaintiff was entitled to the balance. Under this methodology, the amount to be divided equally between the parties was $146,417.

This rollover, however, did not occur promptly. In March 2000, the trial court entered an order appointing a certified public accountant to prepare the appropriate qualified domestic relations order ("QDRO") to complete the transfer. For reasons that are not entirely clear from the record, the transfer was not completed, and in June 2004, the trial court, in response to defendant's pro se motion, entered an order directing defendant to complete this transfer within thirty days.

As a result of this order, $41,018.92 was rolled over into defendant's IRA. This represented one-half of the then-balance in plaintiff's account. Defendant then brought another motion, seeking the difference between $41,018.92 and one-half the balance on account at the time of the property settlement agreement. Plaintiff opposed the application, contending that the account had shrunk in value due to a decline in the market and that defendant should share in that loss. The trial court ultimately rejected plaintiff's argument and directed plaintiff to roll over an additional $26,332.90. That is the order on appeal.

We concur with the trial court that defendant was entitled to this additional distribution. If defendant had received these funds in a timely fashion, she would have been able to make her own investment decisions as to how these funds should be handled. The delay in distribution deprived her of that opportunity. Plaintiff did not demonstrate that the delay in distribution was the result of fault on behalf of defendant. Plaintiff is obligated for these additional funds, not as a penalty, but to make defendant whole.

The order under review is affirmed.

 

(continued)

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A-1239-05T5

June 30, 2006