DOREEN CZINN v. HARRY CZINN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6342-08T3

DOREEN CZINN,

Plaintiff-Appellant/

Cross-Respondent,

v.

HARRY CZINN,

Defendant-Respondent/

Cross-Appellant.

_______________________________________

November 16, 2010

Submitted October 19, 2010 Decided

Before Judges Skillman and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FM-20-356-06B.

Budd Larner, P.C., attorneys for appellant/cross-respondent (David Scott Mack, on the brief).

Harry Czinn, respondent/cross-appellant pro se.

PER CURIAM

Plaintiff Doreen Czinn appeals from provisions of an order entered by the Family Part on June 24, 2009, which denied her motion to enforce litigant's rights. Defendant Harry Czinn cross-appeals from provisions of the June 24, 2009 order denying his cross-motion for imposition of sanctions against plaintiff and her attorney. For the reasons that follow, we affirm on the appeal and the cross-appeal.

I.

This matter arises from the following facts. Plaintiff filed an action for divorce on September 7, 2005, seeking dissolution of the parties' marriage which occurred on May 29, 1988. The court entered a consent judgment dated May 25, 2007, which resolved many of the issues in dispute between the parties. Thereafter, the parties resolved the remaining contested issues and executed a Property Settlement Agreement (PSA) dated October 16, 2007, which was incorporated in the final judgment of divorce of the same date.

Section 4.5 of the PSA, which is entitled "Retirement Plans," is part of the agreement dealing with equitable distribution of the marital property. Section 4.5 states:

Husband represents that he has a retirement pension plan with his current employer. Wife shall receive 45% of the marital share of Husband's pension in this regard acquired from the date of the parties' marriage to the date of complaint, adjusted for COLA and market forces as of the date of distribution as may be provided for in the plan. Within 7 days of this agreement, Husband shall designate Wife for any and all survivorship benefits as may be provided for in the plan on her share as Husband represents that his plan provides for same. Within 7 days of this agreement, Husband shall execute an authorization for Wife to contact Husband's employer to ensure that such survivorship benefits are in effect as represented by Husband. Given Husband's representation in this regard, he shall not be required to carry life insurance to secure Wife's benefit in this regard.

Husband's pension shall be distributed by QDRO [Qualified Domestic Relations Order] or DRO [Domestic Relations Order] prepared by Wife's attorney. The costs of same shall be equally shared by the parties. Husband shall cooperate with the preparation of same in all respects, and shall respond to any requests for review of the QDRO or DRO or information regarding the QDRO within 7 days of the request.

Defendant has been employed by the Port Authority of New York and New Jersey (PANYNJ) since 1978. He is a member of the New York State and Local Retirement System (NYSLRS). On October 19, 2007, defendant designated plaintiff "as a primary beneficiary for her 45% marital share (approximately 28% of the total) of the Ordinary Death Benefit, or pre-retirement survivorship benefit" available under the NYSLRS. On that same date, defendant authorized plaintiff to contact the PANYNJ to confirm her designation as a beneficiary of this death benefit.

Thereafter, a dispute arose between the parties concerning the meaning of section 4.5 of the PSA. On September 30, 2008, plaintiff filed a motion to enforce litigant's rights and for other relief. In her supporting certification, plaintiff stated that section 4.5 required defendant to select a survivorship option, under which the amount of the defendant's pension payments would be reduced but plaintiff would continue to receive her share of the pension payments should defendant die before she does. Plaintiff sought an order requiring defendant to enter into a DRO that would require him to select this survivorship option for his pension payments. She also sought an order requiring defendant to purchase $360,000 in life insurance for his accidental death, and to amend the final judgment to change her name.

Defendant opposed plaintiff's motion and filed a cross-motion seeking an order permitting him to execute a DRO that allowed him to select an option for pension payments of his choice, specifically the "Single Life" option, under which defendant would receive the highest amount of pension payments available and plaintiff would receive a share of those payments, but the payments would cease upon defendant's death. Defendant also sought an order imposing sanctions upon plaintiff for submitting an allegedly false certification, and upon plaintiff's attorney for allegedly misrepresenting the terms of the PSA. Defendant, who appeared pro se, additionally sought an award against plaintiff to compensate him for the time he had devoted to this dispute and for his pain and suffering.

The court considered the motions on October 24, 2008. The court entered a consent order that day permitting plaintiff to change her name. Thereafter, the court received additional submissions from the parties and on June 24, 2009, rendered an oral decision in the matter.

The court found that plaintiff's arguments concerning section 4.5 of the PSA were inconsistent with the plain language of the agreement. The court stated that if it ordered defendant to select the survivorship option for his pension payments, it would be making an agreement for the parties that the parties had not made for themselves.

The court also stated that in the PSA, the parties had reached a compromise on a variety of economic issues and, on the basis of that compromise, defendant had assumed certain financial obligations. The court observed that if it required defendant to select the survivorship option for his pension payments, it would be essentially denying defendant the benefit of the bargain and improperly reforming the agreement.

The court rejected the parties' other demands for relief. The court entered an order dated June 24, 2009, which memorialized its decisions on the motions. Plaintiff's appeal and defendant's cross-appeal followed.

II.

We turn first to plaintiff's appeal. Plaintiff argues that the trial court erred by finding that section 4.5 of the PSA does not require defendant to select an option for his pension payments that would allow her to receive her share of those payments after his death. We disagree.

When interpreting the terms of a contract, the court's task is to ascertain "the probable intent of the parties." Sinopoli v. North River Ins. Co., 244 N.J. Super. 245, 250 (App. Div. 1990), certif. denied, 127 N.J. 325 (1991). If a particular contract term is ambiguous, the court will assess "what was written in the context of the circumstances under which it was written, and accord to language a rational meaning in keeping with the express general purpose." GNOC Corp. v. Dir., Div. of Taxation, 328 N.J. Super. 467, 476-77 (App. Div. 2000) (quoting Acme Markets, Inc. v. Wharton Hardware & Supply Corp., 890 F. Supp. 1230, 1243 (D.N.J. 1995)).

In this case, the trial court found that section 4.5 did not require defendant to select a survivorship option that would allow plaintiff to continue to receive her share of defendant's pension payments after his death. The court determined that defendant's obligation under section 4.5 to provide plaintiff survivorship benefits was satisfied by his designation of plaintiff as a beneficiary for Ordinary Death Benefits available under defendant's retirement plan. The court concluded that section 4.5 permits defendant to chose any option for payment of his pension benefits, including the "Single Life Allowance," that permits defendant to receive the highest amount of pension payments available, and allows plaintiff to receive a share of those payments, but does not provide payments to plaintiff after defendant's death.

We are convinced that the trial court's interpretation of section 4.5 is consistent with the terms of the agreement and reflects the probable intention of the parties. In support of its interpretation of section 4.5, the court pointed to the section of the PSA stating that "[w]ithin 7 days of this agreement, [defendant] shall designate [plaintiff] for any and all survivorship benefits as may be provided for in the plan on her share as [defendant] represents that his plan provides for same."

The court observed that, although defendant could designate plaintiff as a beneficiary for Ordinary Death Benefits within seven days of the date of the PSA, he could not select the survivorship option for his pension payments until he retired. At the time this matter was before the trial court, defendant had not retired. The court concluded that Section 4.5 does not require defendant to exercise the survivorship option for his pension payments. The terms of the agreement support the court's determination.

In its decision, the trial court also found that if it were to order defendant to select a particular option for his retirement benefits, it would be imposing an agreement upon the parties that the parties had not made. We agree. The record shows that there are various payment options available to defendant for his pension benefits, including the aforementioned "Single Life Allowance." The fact that the PSA did not identify any specific payment option indicates that the parties did not intend to require defendant to select an option that would allow plaintiff to continue to receive her share of his pension payments if defendant dies before she does.

The trial court's interpretation of the PSA also is supported by the part of section 4.5 which provides that, in view of defendant's agreement to designate plaintiff for purposes of receiving survivorship benefits under his retirement plan, defendant would not be required to carry any insurance on his life "to secure [plaintiff's] benefit in this regard." It is reasonable to conclude that the parties agreed that insurance on defendant's life was not required because plaintiff would receive Ordinary Death Benefits upon his death.

Plaintiff argues, however, that her interpretation of section 4.5 is correct because, within ten days after the date of the PSA, defendant could have entered into a DRO under which he would have been required to select the survivorship option for his pension payments. This argument fails because the PSA does not require defendant to enter into a DRO within seven days of the date of the agreement. The PSA provides that defendant must cooperate in the preparation of the QDRO or DRO, and only requires that he respond to requests by plaintiff's attorney for information regarding the order within seven days of any such request.

Plaintiff further argues that the trial court erred by failing to conduct an evidentiary hearing on this dispute. Again, we disagree. Although the parties proffered different interpretations of the PSA, resolution of those differences ultimately turns upon the terms of the PSA. This matter involves the interpretation of a contract, rather than a genuine issue of material fact that requires an evidentiary hearing. Heller-Loren v. Apuzzio, 371 N.J. Super. 518, 534 (App. Div. 2004).

We have considered plaintiff's other contentions and find them to be without sufficient merit to warrant any discussion in this opinion. R. 2:11-3(e)(1)(E).

III.

We turn to defendant's cross-appeal. Defendant contends that the trial court should have ordered plaintiff to compensate him for the time he devoted to this dispute. Defendant argues that he is entitled to such compensation pursuant to section 8.3 of the PSA, which provides that:

[s]hould either party fail to abide by the terms of this Agreement, then the defaulting party shall indemnify, defend and hold the other party harmless for all reasonable expenses and costs, including attorney's fees and disbursements, incurred in successfully enforcing this Agreement, or asserting or defending his or her rights hereunder, as against the other party or third party, providing that notice of the default and reasonable opportunity to cure, have been given.

Although defendant prevailed in the trial court on his interpretation of the PSA, he has not shown that he incurred any out-of-pocket expense in doing so. The PSA also makes no provision for compensating a litigant for the pain and suffering that may result from a dispute over its provisions.

The court rules also provide no authority for the compensation defendant sought here. Although Rule 5:3-5 allows the award of reasonable attorneys fees to a prevailing party in a matrimonial action, there is no rule that authorizes an award to compensate a pro se litigant for the time devoted to litigating such a case or any pain and suffering related thereto.

In support of his argument, defendant relies upon Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 18 (App. Div. 2001), where the court held that counsel fees could be awarded pursuant to the offer of judgment rule to a law firm that appeared pro se in a lawsuit. We note, however, that in Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 543-47 (App. Div. 2009), the court held that an attorney who appeared pro se is not entitled to an award of counsel fees pursuant to Rule 1:4-8, the frivolous litigation rule. In any event, this matter does not involve the offer of judgment rule and defendant is not a pro se attorney. Thus, defendant's reliance upon the Brach, Eichler case is misplaced.

Defendant also contends that the trial court erred by refusing to impose sanctions upon plaintiff and her attorney for allegedly prosecuting the matter in bad faith. The record shows, however, that this matter involved a good faith dispute between the parties as to the meaning of the PSA. We are therefore convinced that the trial court did not abuse its discretion by refusing to impose sanctions upon plaintiff and her attorney.