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October 24, 2014


Submitted August 27, 2014 Decided

Before Judges Messano and Ostrer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2467-07.

Goldstein, Bachman & Newman, L.L.P., attorneys for appellant (Mark Goldstein, of counsel and on the brief).

Deborah A. Rose, attorney for respondent.


In this post-judgment matrimonial matter, plaintiff, Katherine Felton, sought entry of a qualified domestic relations order (QDRO), equitably distributing a pension that her former husband, defendant Robert Felton, earned while employed at Public Service Electric and Gas (PSE&G). After conducting a plenary hearing over several days, and hearing the testimony of the parties and their former attorneys who represented them during the divorce proceedings and negotiation of a property settlement agreement (PSA), Judge Barry A. Weisberg concluded that plaintiff had knowingly waived her interest in defendant's pension.

We discern the following facts from the testimony and documentary evidence produced before Judge Weisberg. After nearly twenty-seven years of marriage, plaintiff filed a complaint for divorce, and a dual judgment of divorce (JOD) was entered on May 19, 2008. The JOD incorporated the terms of the PSA, Section 4.2 of which, entitled "Emoluments of Employment," provided

1. Both parties represent that neither has taken any loans against their respective 401(k)'s. . . . Wife is a participant in a 401(k) with her employer, the United States Postal Service. The value of Wife's 401(k) is approximately $34,000.00. Husband is a participant in a 401(k) with his employer, Public Service Electric & Gas (PSE&G). The value of Husband's 401(k) is approximately $160,000.00.

2. The coverture portion of these plans . . . , and to the extent there are others not heretofore mentioned, shall be offset from one another and the difference between them divided equally between the parties. If, to the extent a qualified Court Order is required in order to accomplish same, the cost of same shall be borne equally by the parties.

[(Emphasis added).]

The parties further agreed to share the costs and utilize the services of Troyan, Inc., for the preparation of any QDRO to effect the division of assets anticipated by this section.

The PSA also addressed alimony, and provided that "[e]ffective [upon] [defendant's] first pay period following the closing on the sale of the marital residence, [defendant] shall pay to [plaintiff] permanent alimony in the amount of $2,200.00 per month." Defendant, on the other hand, agreed to a "final and irrevocable" waiver of alimony, "except in the event of a disability arising out of his current [medical] condition . . . ." Defendant had asserted a counterclaim alleging tortious conduct on plaintiff's part that had resulted in his current medical condition.

Within months of the entry of the JOD, a disagreement arose regarding the QDRO. Plaintiff's counsel notified Troyan by letter dated August 1, 2008, ("the August 2008 letter") that, "[t]here is also a pension that needs to be distributed [that] her former husband [had] . . . with PSE&G."1 On August 12, without addressing counsel's assertion or providing any additional information, defense counsel sent a letter to Troyan, enclosing defendant's payment for preparation of the QDRO.

On September 2, 2008, Troyan sent both counsel a letter, acknowledging receipt of its fee, noting the August 2008 letter and indicating that, if defendant's "pension benefit [had] to be divided," an additional fee would be required. The letter further provided, "[p]lease confirm the amount to be awarded to [plaintiff] from the Pension Plan. We did not see the Pension Plan referenced in paragraph 4.2." (Emphasis added). Apparently receiving no response from either party, Troyan mailed a second request on November 10, 2008.

On February 4, 2009, Troyan forwarded a draft of the QDRO dividing defendant's "Thrift and Tax-Deferred Savings Plan" with PSE&G. Troyan reiterated

We are enclosing the Order against the Thrift Savings Plan only at this time. If any Orders are required to be prepared against the Pension Plan(s) we will require the additional fee of $500.00 per Order, all of the required data pertaining to the Pension Plan(s) and also advise where in the Agreement it divides the Pension benefits.

[(Emphasis added).]

It is undisputed that neither party sent additional fees, information or directions to Troyan regarding preparation of a QDRO distributing defendant's pension plan.

Plaintiff moved before Judge Weisberg on September 2, 2009, to enforce litigant's rights due to defendant's objection to the terms of the QDRO and his refusal to execute it. She requested, among other things, that the court approve the QDRO. By order dated September 9, the judge granted plaintiff this relief, and on December 11, defendant's 401(k) plan with PSE&G was divided by way of the QDRO.

Nearly two years later, plaintiff filed another motion to enforce litigant's rights, requesting among other relief that the court divide defendant's pension plan with PSE&G by way of another QDRO. Defendant filed a cross-motion in opposition, requesting additional relief and alleging there was no agreement to equitably distribute pension plans. On December 2, 2011, Judge Weisberg entered an order reserving the issue pending a plenary hearing as to "whether it was the intent of the parties' PSA to include their pensions in equitable distribution."

The hearing took place over several non-consecutive days, after which Judge Weisberg issued a comprehensive written opinion. He noted that the current dispute "[arose] out of the meaning of section 4.2 of [the] PSA." The judge found that both parties participated in a 401(k) plan and "defined benefit pension plan" through their respective employers, although plaintiff "may not have been vested in the pension plan at the time of the divorce." Judge Weisberg noted that plaintiff "either did not know that either party had a pension plan separate from the 401(k) or that to the extent she may have known about the plans[,] it was her understanding and expectation that the pensions would be subject to distribution and were so included." Defendant, on the other hand, contended that "both pensions were excluded from equitable distribution by agreement of the parties."

Citing Painter v. Painter, 65 N.J. 196, 214 (1974), Judge Weisberg noted that defendant bore the burden of proof in seeking to exclude a marital asset from equitable distribution. He concluded that section 4.2 was "in fact subject to multiple interpretations." As a result, the judge considered the documentary evidence and testimony regarding the negotiations that led up to the executed PSA.

Judge Weisberg found that defendant had disclosed both the PSE&G 401(k) plan and pension plan in his initial answers to interrogatories in the divorce case, and, plaintiff's former counsel was aware of both plans as evidenced by his submission to the Early Settlement Panel. The judge noted that defendant, through counsel, had always taken the position that only the 401(k) plans, and not the pension plans, were subject to equitable distribution. The judge noted that defendant's tort claims against plaintiff "provide[d] a rationale" for this position that "would be hard to fathom under other circumstances." Judge Weisberg also took note of defendant's initial position that he would not pay any alimony, but noted "[b]y the time of the final agreement[,] he had compromised to the extent of agreeing to pay alimony and waiving any claim he had to receive alimony."

Judge Weisberg found support for the conclusion that section 4.2 only applied to the 401(k) plans based upon the specific language of the provision. However, the judge reasoned that he also needed to decide "whether the failure to mention pension plans in the PSA is a result of a conscious and knowing mutual waiver . . . or is the result of [plaintiff] not understanding that her husband had a pension and her not knowing that she also had a pension." Judge Weisberg concluded that "[a] close examination of the facts is persuasive that [plaintiff] did in fact waive her claim to [defendant's] pension and further ratified that waiver post-judgment."

He noted that the August 2008 letter demonstrates that plaintiff knew about the pension plan. The judge took note of prior defense counsel's testimony at the hearing, in which she stated that upon receipt of the letter, she called plaintiff's counsel, who had not directly participated in the negotiations, and advised that the pension plans were intentionally excluded from equitable distribution. There was no objection raised by plaintiff's counsel.

Judge Weisberg discussed the various correspondence from Troyen, which pointedly raised the fact that section 4.2 made no mention of pension plans, as well as plaintiff's prior motion in aid of litigant's rights, in which she sought approval of the QDRO that solely dealt with defendant's 401(k) plan. Judge Weisberg noted, "[g]iven that a focal point of plaintiff's motion was the execution of the 401(k) QDRO[,] it strains credulity to think that if the pensions were an issue[,] the motion would not seek relief on that issue."

Lastly, Judge Weisberg noted that he had to examine the PSA "to ensure that it is not so inequitable as to compel a court of equity to decline enforcement." The judge concluded that "[t]he evidence is persuasive that the pension interest was waived in return for waiver of the tort claims and in return for an agreement to pay alimony." He held that "plaintiff knowingly waived her interest in defendant's pension and that denial is not so inequitable as to be unenforceable . . . ." Judge Weisberg denied plaintiff's motion and entered the order under review.

Before us, plaintiff argues that since the PSA did not explicitly exclude the pensions from equitable distribution, the parties' intended that all assets be subject to equitable distribution, including both parties' pension plans. We have considered the argument in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Weisberg in his comprehensive written opinion. We add only the following brief comments.

It is well-established that "that '[a] reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record.'" MacKinnon v. MacKinnon, 191 N.J. 240, 253-254 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (alteration in original).

Even "where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts" and their implications, and thus "the traditional scope of review is expanded," we will nonetheless accord deference to the trial court's findings unless they "went so wide of the mark that a mistake must have been made."

[Id. at 254 (quoting M.M., supra, 189 N.J. at 279.]

"That deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)).

Here, Judge Weisberg had ample opportunity to consider the testimony of the four people most intimately involved in the preparation of the PSA. He considered the other documentary evidence, as well as the explanations offered by both sides as to the meaning and import of that evidence. After careful consideration, the judge concluded plaintiff had waived any right to the equitable distribution of defendant's pension.

As we have said, "an intention to waive need not be manifested expressly but may be spelled out from a state of facts exhibiting full knowledge of the circumstances producing a right and continuing indifference to exercise of that right." Belfer v. Merling, 322 N.J. Super. 124, 139 (App. Div. 1999) (citing Merchants Indem. Corp. v. Eggleston, 68 N.J. Super. 235, 254 (App. Div. 1961), aff'd, 37 N.J. 114 (1962)). Judge Weisberg's conclusion that plaintiff had knowledge of defendant's separate pension prior to negotiating the PSA was amply supported by the record. Nevertheless, the terms of the PSA did not specifically address each party's pension, and, to the contrary, only addressed the existing 401(k) plans. Even after Troyan brought this omission to plaintiff's attention, her efforts to have the court enforce the terms of the PSA were limited solely to the 401(k) QDRO. Years went by before plaintiff ever asserted any claim to the PSE&G pension plan. Given these factual findings made by Judge Weisberg, all of which are supported by the credible evidence, we find no error in the legal conclusion he drew therefrom.


1 Although still represented by the same firm, the attorney who had actually negotiated the PSA and represented plaintiff during the divorce proceedings had left the firm. Plaintiff's current counsel authored the August 2008 letter, which was copied to defendant's counsel at the time.