WILSON A. VALDEZ v. SANDRA CAGUA-VALDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0669-11T1

WILSON A. VALDEZ,

Plaintiff-Appellant,

v.

SANDRA CAGUA-VALDEZ,

Defendant-Respondent.

_______________________________________

December 3, 2012

Submitted October 16, 2012 Decided

Before Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Union County, Docket No. FM-20-1767-09.

Wilson A. Valdez, appellant pro se.

Lane & Lane, L.L.C., attorneys for respondent (Daniel J. Lane, on the brief).

PER CURIAM

Plaintiff Wilson A. Valdez appeals from orders entered by the Family Part, which provided for the execution of a Qualified Domestic Relations Order (QDRO) distributing the parties' retirement and investment accounts. For the reasons that follow, we affirm.

The parties were married on February 22, 2000. On May 26, 2009, plaintiff filed a complaint for divorce. On June 10, 2010, the parties executed a property settlement agreement (PSA), which was incorporated in the final judgment of divorce entered on that date. Article IX of the PSA addressed the distribution of the marital portion of parties' retirement and investment accounts. It stated as follows:

9.1 The parties have agreed to equally divide the marital portion of their respective retirement and investment accounts set forth below, defined as those funds earned in each account between the date of the marriage and the date of the complaint filing, . . . less any contributions made subsequent to the date of the divorce complaint. The accounts shall be equalized by either tax free rollover or a [ ]. Wife shall advise Husband of the name of the qualified tax-exempt vehicle to which her distribution interest will be deposited and Husband shall complete the appropriate rollover within thirty (30) days of receiving notice of Wife's account.

Pension evaluations [at] Troyan Inc. [Troyan] prepared evaluations of both parties' pensions and determined that Husband's marital present cash value was $18,417 and Wife's marital present cash value was $10,185. The following accounts and values are those in the Husband's name; EIC Associates 401(k) (ING) with a value of $56,502 as of September 30, 2009; Fidelity Rollover with a value of $11,485 as of September 30, 2009; Traditional IRA with a value of $5,903 as of September 30, 2009; Roth IRA with a value of $9,982 as of September 30, 2009; Local 731 Annuity Fund with a value of $15,161 as of December 30, 2009; and Supplemental Benefits Program with a value of $14,125 as of December 30, 2009. The following accounts and values are those in the Wife's name: First Fidelity IRA with a value of $2,469 as of March 31, 2010. All accounts will be divided by July 10, 2010 through the assistance of [the parties' attorneys].

Defendant's attorney thereafter sent plaintiff's attorney a QDRO to divide the aforementioned accounts. Plaintiff objected to the QDRO's division of his Local 731 Annuity Fund on two grounds. He asserted that Troyan had erroneously calculated the marital portion of that account as of September 30, 2009, and should have made its calculation as of May 26, 2009, when the divorce complaint was filed. He also asserted that the Local 731 Annuity Fund should not be distributed because it would not vest until plaintiff had five years of credited service.

On May 11, 2011, defendant filed a motion to compel plaintiff to execute the QDRO that was provided to him. Defendant also sought counsel fees and costs related to the motion. On June 21, 2011, plaintiff opposed the motion and filed a cross-motion seeking an order modifying the PSA "to reflect the proper amounts" of the retirement and investment accounts subject to distribution. He requested that the Local 731 Annuity Fund be exempt from distribution until October or November 2012, when it would vest.

In addition, plaintiff asked the court to compel plaintiff to provide proof of life insurance, vacate the marital residence or pay rent; pay half of certain expenses for the marital residence; provide him with a copy of the key to the residence; provide information about a contractor hired to perform work on the house; and return his power tools. Defendant opposed the cross-motion and asked the court to order defendant to return half of the amount of a certificate of deposit that defendant had recently "cashed in."

The court considered the motions on August 19, 2011. The court determined that defendant was entitled to enforce the PSA using the accounts and balances set forth in the agreement. The court ordered plaintiff to execute the QDRO as drafted. The court also ordered plaintiff to provide proof of life insurance. The court denied all other relief sought by the parties. The court memorialized its decision in an order dated August 19, 2011.

Plaintiff did not sign the QDRO as required by the court's order. On September 12, 2011, defendant's attorney asked the court to designate an attorney-in-fact to execute the QDRO on plaintiff's behalf. On September 13, 2011, the court designated an attorney to execute the QDRO, and the QDRO was executed that day. A week later, plaintiff wrote to the court and asked that it stay the September 13, 2011 order pending appeal. It is unclear from the record whether the court ever acted on the request. Plaintiff thereafter filed his notice of appeal.

Plaintiff first argues that the parties intended to divide the marital portion of their retirement and investment funds as of the date the complaint was filed, and made no provision for the division of any contributions in these funds after that date. Plaintiff acknowledges that Article IX of the PSA lists account balances as of September 30, 2009, December 30, 2009, and March 31, 2010, but says that this was done solely to identify the funds, rather than to specify the amounts to be divided. We do not agree.

PSAs are essentially contracts between divorcing spouses and should not be "'unnecessarily or lightly disturbed.'" Konzelman v. Konzelman, 158 N.J.185, 193-94 (1999) (quoting Smith v. Smith, 72 N.J.350, 358 (1977)). Interpretations of a PSA are issues of law for the court. Barr v. Barr, 418 N.J. Super. 18, 31 (2011). The court must enforce an unambiguous contract according to its terms, which should be read "as a whole in a fair and common sense manner." Hardy ex. rel. Dowdell v. Abdul-Matin, 198 N.J. 95, 103 (2009). The court may not "'supply terms to contracts that are plain and unambiguous,'" or "'make a better contract for either of the parties than the one which the parties themselves have created.'" Barr, supra, 418 N.J. Super. at 31-32.

As we previously noted, Article IX of the PSA states that the parties have agreed to equally divide the marital portion of their respective and investments funds "set forth below, defined as those funds earned in each account between the date of the marriage and the date of the complaint filing[.]" The PSA goes on to identify the accounts to be divided, as well as the balances in those accounts. Some of the accounts were valued as of dates other than the date the complaint was filed.

We are satisfied that the trial court correctly determined that the parties intended to divide the retirement and investment funds in the amounts specified in the PSA. When the parties entered the PSA, they had evaluations prepared by Troyan, which valued the parties' respective retirement and investment funds.

The Troyan evaluation of plaintiff's accounts indicated that the present cash value of plaintiff's pension was $18,417 and defendant's pension was $10,185. The PSA does not indicate the date as of which the cash values of these accounts were determined. Furthermore, according to the PSA, the Troyan evaluations identified other accounts to be divided. The Troyan evaluations set forth the balances for those accounts, as of September 30, 2009, December 30, 2009, or March 31, 2010. We are convinced that had the parties intended to divide all of the accounts as of May 29, 2009, as plaintiff claims, the parties would have identified the accounts that would be divided without mentioning the balances of certain accounts as of dates other than May 29, 2009.

Moreover, the PSA indicated that the division of the accounts would be accomplished within one month after execution of the agreement. It is reasonable to assume that the parties intended this would be accomplished based on the evaluations that Troyan had provided, and the parties did not contemplate that further evaluations would be made.

Plaintiff argues, however, that enforcement of the PSA based on the cash values set forth in the agreement is unfair, unjust and inequitable. He contends the trial court should have reformed the agreement and directed the division of the accounts as of May 29, 2009. Again, we disagree.

Courts have the "equitable authority" to modify or reform PSAs to "reflect the strong public and statutory purpose of ensuring fairness and equity in the dissolution of marriages." Miller v. Miller, 160 N.J. 408, 418 (1999) (citing Peterson v Peterson, 85 N.J. 638, 644 (1981)). A court may reform an agreement that is unconscionable, or contains "a common mistake, or mistake of one party accompanied by concealment of the other," and therefore, fails to reflect the parties' intent. Id. at 419 (citing Capanear v. Salzano, 222 N.J. Super. 403, 407 (App. Div. 1988)).

Nevertheless, a PSA may not be set aside when it has been negotiated by both parties, approved by the court, and is not "unjust or inequitable in any respect[.]" Wertlake v. Wertlake, 137 N.J. Super. 476, 482 (App. Div. 1975). Applying these principles, we conclude that there is no basis to modify the PSA.

The agreement was negotiated by the parties and they had the benefit of counsel during the negotiations. The agreement was presented to the court, and plaintiff assured the court that he understood the contents of the PSA, was satisfied with its terms, was satisfied with his attorney's representation, and was signing the PSA voluntarily and without any coercion. In addition, division of the accounts in the manner prescribed in the PSA is not unjust or inequitable.

Plaintiff further argues that the trial court erred by ordering the division of the Local 731 Annuity Fund because his right to those benefits had not vested. We do not agree.

The right to receive a pension, even if not vested, is an asset that is a "'result of direct or indirect efforts expended by one or both parties to the marriage . . . and a right acquired during the marriage.'" Moore v. Moore, 114 N.J. 147, 156 (1989) (quoting Kikkert v. Kikkert, 177 N.J. Super. 471, 475 (App. Div. 1981)). Each spouse has an "'expectation of future enjoyment'" in the pension payments, with the understanding that the pensioner must survive in order to receive it. Ibid. (quoting Kikkert, supra, 177 N.J. Super. at 476).

Therefore, pension benefits that are not vested may be included in an equitable distribution award. Ibid. See also Whitfield v. Whitfield, 222 N.J. Super. 36, 47 (App. Div. 1987) (holding that portion of pension earned during marriage is subject to equitable distribution even though not vested or matured). We therefore conclude that the court did not err by ordering the equitable distribution of the Local 731 Annuity Fund.

Plaintiff additionally argues that: (1) Troyan's evaluations did not provide a proper basis for the PSA because Troyan had not been provided with certain pension plan documentation; (2) he had the right to "buy out" defendant's stake in his pension; (3) the QDRO erroneously used June 10, 2010, as the "cut-off" date for pension fund contributions that were to be distributed; (4) the trial court erroneously failed to rule on his motion to compel defendant to reimburse him for payments he made towards certain expenses for the marital home; (5) the trial court erred by ordering defendant to provide proof of life insurance without inquiring as to the "actual date" such insurance was obtained and requiring defendant to pay additional costs plaintiff incurred for insurance; and (6) the court erred by concluding there was insufficient evidence for a ruling on his demand that defendant provide additional documentation pertaining to renovations made to the marital home.

We are convinced that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.