V.T v. K.T
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1344-16T2
V.T.,
Plaintiff-Appellant,
v.
K.T.,
Defendant-Respondent.
__________________________________
Submitted February 6, 2018 – Decided February 28, 2018
Before Judges Carroll and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Somerset
County, Docket No. FM-18-0101-13.
The DeTommaso Law Group, LLC, attorneys for
appellant (Andrew M. Shaw, on the briefs).
John W. Thatcher, attorney for respondent.
PER CURIAM
Plaintiff V.T. appeals from a March 1, 2016 order that vacated
a Qualified Retirement Benefits Court Order (QRBCO) to distribute
plaintiff's share of defendant K.T.'s Thrift Savings Plan (TSP)
account, pursuant to Rule 4:50-1(f). Plaintiff also appeals from
an October 25, 2016 order that required her to distribute $54,000
to defendant by way of a new Qualified Domestic Relations Order
(QDRO), denied plaintiff's motion for reconsideration, and awarded
defendant $4000 in counsel fees. We affirm.
I.
The following facts are taken from the record. The parties
were divorced on February 7, 2013. The issues in the divorce were
resolved in a written Marital Settlement Agreement (MSA),
negotiated through counsel. The MSA stipulated defendant had
earned approximately $56,000 per year from his employment with the
United States Postal Service and a local church, and that plaintiff
earned approximately $35,000 per year from her employment with
Somerset County and a local church. Thus, according to the MSA,
"[t]he parties lived a very modest lifestyle."
Pursuant to the MSA, defendant agreed to pay plaintiff $700
per month in permanent alimony, and $924 per month in child support
for the parties' two children. The remainder of the financial
issues in the MSA focused on the parties' modest equitable
distribution. Specifically, plaintiff was afforded the ability
to retain the parties' former marital residence valued at
approximately $179,000, provided she pay off the credit card debt,
refinance, and pay off the mortgage and home equity line of credit
totaling approximately $116,000. Thereafter, the MSA provided
2 A-1344-16T2
"[a]ny remaining monies from the refinance shall be divided equally
by the parties." The parties agreed to other contingencies
regarding the refinance of the marital residence; however, the
overall equitable distribution scheme was to equally share the
equity of the residence.
The parties agreed to retain their respective automobiles, a
1
999 Oldsmobile and a 2003 Volkswagen, without an offset in
equitable distribution. They agreed to account for and equally
distribute in-kind approximately $24,000 in savings bonds.
The MSA required the marital coverture portion of defendant's
retirement accounts, including the TSP, be equalized within forty-
five days. The equalization was to be adjusted to provide
defendant a credit for his interest in the marital home.
Specifically, the MSA stated:
[Defendant] shall be entitled to a credit for
one half of the difference between the
appraisal price and the refinance monies
actually obtained from the home. This credit
shall be a non-tax adjusted credit against
monies owed to [plaintiff] from [defendant's]
thrift account . . . . By way of example
only, if the home appraises for $179,000, and
the maximum monies that are refinanced by
[plaintiff] are $149,000, one half the
difference of $30,000, namely $15,000 shall
be credited in [defendant's] favor from
[plaintiff's] share of the [TSP].
3 A-1344-16T2
The amounts due each party from the refinance were unknown
at the time of the MSA. However, afterwards the parties and their
counsel executed a consent order that memorialized $13,175 would
be credited to defendant's share of the TSP as his one-half share
of the equity from the former marital residence. The consent
order also defined the previously unknown amounts to be included
in the future QRBCO.
Plaintiff, through counsel, submitted an application on
behalf of the parties to pension evaluators at Troyan, Inc.
(Troyan), for Troyan to determine the distribution of defendant's
TSP pursuant to the MSA. Consistent with the MSA, the application
stated plaintiff was to receive fifty percent of the funds in the
account, less the $13,175 credit to defendant. Defendant's
employer rejected Troyan's subsequent submission and the proposed
distribution, stating:
the court order does not meet [the]
requirement [that the payee's entitlement be
described in terms of a fixed dollar amount
or as a percentage or fraction of the account
as of a particular date] because it assigns
[plaintiff] "an amount equal to [fifty
percent] of the marital interest, Date of
Marriage to End of Marriage Date 08/27/1988
to 07/02/2012; less the sum certain of
$13,175.00 of the [TSP]" which is a non-
qualifying computation.
4 A-1344-16T2
Therefore, Troyan prepared the QRBCO, which did not include
the $13,175 credit to defendant. Plaintiff's counsel signed the
QRBCO, as did defendant's then-attorney. The court entered the
order on February 13, 2015. When defendant received his copy of
the signed QRBCO, he noticed it granted plaintiff $112,000 of his
retirement account and would leave him with $53,000. Defendant's
telephone calls and attempts to meet with his counsel were
unsuccessful.
On June 29, 2015, defendant received a distribution notice
from TSP, which confirmed plaintiff had received $111,693.90,
leaving a remaining balance in the account of $53,180.38.
Defendant hired new counsel who retained Pension Appraisers, Inc.
to perform a valuation of the retirement account distribution.
Pension Appraisers contacted Troyan regarding the QRBCO, however,
Troyan advised that plaintiff's counsel "ha[d] not permitted
[them] to discuss this matter with . . . Pension Appraisers, Inc."
Plaintiff's counsel disputed the claim he forbade Troyan from
speaking with defendant's expert and instead asserted he had not
instructed Troyan "one way or the other" regarding sharing
information with Pension Appraisers. When defendant's counsel
attempted to arrange a conference between Troyan and Pension
Appraisers he was informed plaintiff's counsel had not submitted
5 A-1344-16T2
the "signed authorization forms" required to release the
information.
The parties entered mediation to resolve unrelated post-
judgment issues, but the mediation discussions evolved to include
the dispute regarding the distribution of the TSP. Subsequent to
mediation, the mediator circulated a proposed order, which
included a provision that defendant and his counsel were permitted
to access Troyan's records, and required Troyan to discuss all
details of the work performed for the parties. Plaintiff refused
to sign the proposed consent order.
Therefore, defendant filed a motion to vacate the QRBCO,
which the motion judge granted on March 1, 2016. The order
permitted defendant's counsel to obtain all information related
to the QRBCO from Troyan, and required the parties and counsel to
cooperate if more information was needed. The order permitted a
sixty-day discovery period to complete the investigation and for
the parties to execute a new QRBCO. The order required both
parties to work directly with Troyan and cooperate with each other
to prepare a new QRBCO, and "provide all relevant information and
documentation regarding same without the express written approval
of the other party."
As a result of the court-ordered information exchange,
Pension Appraisers concluded plaintiff owed defendant $61,632.61.
6 A-1344-16T2
Defendant's counsel proposed a resolution to the dispute, which
plaintiff rejected. Plaintiff requested all documentation
defendant had submitted to Pension Appraisers for her expert to
review before she agreed to a revised QRBCO.
Defendant's counsel made several attempts to contact
plaintiff's counsel to follow up on the status of her expert's
investigation. Plaintiff, through counsel, responded that they
were only "in the process" of having an independent expert review
the materials provided and sought further documentation for the
expert's review. Defendant's counsel complied and provided all
of the documents Troyan had provided to him to plaintiff's counsel.
Defendant's counsel requested the name of the independent expert
plaintiff had hired, only to learn she had retained Troyan.
Because plaintiff had failed to produce an expert report,
defendant filed a motion to enforce litigants rights, seeking: (1)
the court to accept the Pension Appraisers valuation of the TSP;
(2) directing Pension Appraisers to prepare a new QRBCO consistent
with its report; (3) requiring plaintiff to return the overpayment
she previously received from the TSP; and (4) requiring plaintiff
to pay defendant's counsel fees for the enforcement application.
The day after defendant filed his motion, plaintiff produced
Troyan's expert report, which conceded the previous distribution
had been made in error and that defendant was owed $47,665.16.
7 A-1344-16T2
Plaintiff also opposed defendant's motion and filed a cross-motion
for reconsideration of the previous court order, and for a plenary
hearing and other relief.
On October 25, 2016, the motion judge entered an order, which
denied plaintiff's cross-motion and granted defendant's motion for
Pension Appraisers to prepare a new QDRO. However, the judge
denied defendant's request to adopt the Pension Appraisers'
report, and instead ordered plaintiff to return $54,000.00 to
defendant, which represented approximately one-half of the
difference between the $61,632.61 in Pension Appraisers' report
and the $47,665.16 in Troyan's report. The motion judge also
granted defendant $4,000 in counsel fees.
On appeal, plaintiff argues the motion judge erred in granting
the motion to vacate the QRBCO because defendant's error of
submitting the initial QRBCO was one he could have protected
himself from, and did not constitute the sort of mistake cognizable
under Rule 4:50-1(a). Plaintiff also argues the judge was
precluded from according relief under Rule 4:50-1(f) because it
is not available when another grounds for relief is asserted.
Plaintiff claims even if relief were available under Rule 4:50-
1(f), defendant did not demonstrate the exceptional circumstances
necessary to meet it. Plaintiff argues defendant's contention
that his former counsel did not discuss the initial version of the
8 A-1344-16T2
QRBCO and submitted it to the court for entry without defendant's
authorization was a disputed fact, which the motion judge should
have scheduled a plenary hearing to resolve. Lastly, plaintiff
argues the motion judge's counsel fee award lacks adequate
findings.
II.
We begin with our standard of review. The Supreme Court has
stated:
[F]indings by a trial court are binding on
appeal when supported by adequate,
substantial, credible evidence. Cesare v.
Cesare,
154 N.J. 394, 411-12 (1998). . . .
If the trial court's conclusions are supported
by the evidence, we are inclined to accept
them. Ibid. We do "not disturb the 'factual
findings and legal conclusions of the trial
judge unless . . . 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. (quoting Rova Farms
Resort, Inc. v. [Inv'rs] Ins. Co. of Am., 65
N.J. 474, 484 (1974)). "Only when the trial
court's conclusions are so 'clearly mistaken'
or 'wide of the mark'" should we interfere to
"ensure that there is not a denial of
justice." N.J. Div. of Youth & Family Servs.
v. E.P.,
196 N.J. 88, 104 (2008) (quoting N.J.
Div. of Youth & Family Servs. v. G.L., 191
N.J. 596, 605 (2007)).
[Gnall v. Gnall,
222 N.J. 414, 428 (2015).]
"Appellate courts accord particular deference to the Family Part
because of its 'special jurisdiction and expertise' in family
9 A-1344-16T2
matters." Harte v. Hand,
433 N.J. Super. 457, 461 (App. Div.
2013) (quoting Cesare,
154 N.J. at 412). However, "[t]his court
does not accord the same deference to a trial judge's legal
determinations. Rather, all legal issues are reviewed de novo."
Ricci v. Ricci,
448 N.J. Super. 546, 565 (App. Div. 2017) (citing
Reese v. Weis,
430 N.J. Super. 552, 568 (App. Div. 2013)).
Our review of equitable distribution determinations is
narrow. Valentino v. Valentino,
309 N.J. Super. 334, 339 (App.
Div. 1998); Wadlow v. Wadlow,
200 N.J. Super. 372, 377 (App. Div.
1985). We decide only whether the trial court "mistakenly
exercised its broad authority to divide the parties' property and
whether the result was 'reached by the trial judge on the evidence,
or whether it is clearly unfair or unjustly distorted by a
misconception of law or findings of fact that are contrary to the
evidence.'" Valentino,
309 N.J. Super. at 339 (quoting Wadlow,
200 N.J. Super. at 382). "A sharp departure from reasonableness
must be demonstrated before our intercession can be expected."
Wadlow,
200 N.J. Super. at 382 (quoting Perkins v. Perkins,
159 N.J. Super. 243, 248 (App. Div. 1978)).
We review a trial judge's enforcement of litigant's rights
pursuant to Rule 1:10-3 under an abuse of discretion standard.
Barr v. Barr,
418 N.J. Super. 18, 46 (App. Div. 2011). An award
10 A-1344-16T2
"of counsel fees is discretionary, and will not be reversed except
upon a showing of an abuse of discretion." Ibid.
III.
At the outset, we reject plaintiff's argument pursuant to
Manning Eng'g, Inc. v. Hudson Cty. Park Comm'n,
74 N.J. 113 (1977),
that the motion judge could not adjudicate defendant's motion
pursuant to Rule 4:50-1(f). Although relief under Rule 4:50-1(f)
"may be granted only where the court is presented with a reason
not included among any of the reasons subject to" Rule 4:50-1(a)
to (c), there was ample evidence for the motion judge to grant
relief, independently, under Rule 4:50-1(f). Manning,
74 N.J. at
123.
In pertinent part, Rule 4:50-1 states: "On motion, with
briefs, and upon such terms as are just, the court may relieve a
party or the party's legal representative from a final judgment
or order for the following reasons: . . . (f) any other reason
justifying relief from the operation of the judgment or order."
Generally, "[c]ourts should use Rule 4:50-1 sparingly, [and] in
exceptional situations[.]" Hous. Auth. of Morristown v. Little,
135 N.J. 274, 289 (1994).
"No categorization can be made of the situations which would
warrant redress under subsection (f). . . . [T]he very essence
of (f) is its capacity for relief in exceptional situations. And
11 A-1344-16T2
in such exceptional cases its boundaries are as expansive as the
need to achieve equity and justice." DEG, LLC v. Twp. of
Fairfield,
198 N.J. 242, 269-70 (2009) (quoting Court Inv. Co. v.
Perillo,
48 N.J. 334, 341 (1966)) (alterations in original).
Relief under Rule 4:50-1 "is designed to reconcile the strong
interests in finality of judgments and judicial efficiency with
the equitable notion that courts should have authority to avoid
an unjust result in any given case." Manning,
74 N.J. 113, 120
(citing Hodgson v. Applegate,
31 N.J. 29, 43 (1959)).
The Supreme Court recently stated:
Settlement of disputes, including matrimonial
disputes, is encouraged and highly valued in
our system. Indeed, there is a "'strong
public policy favoring stability of
arrangements' in matrimonial matters." . . .
Therefore, "fair and definitive arrangements
arrived at by mutual consent should not be
unnecessarily or lightly disturbed." . . .
A settlement agreement is governed by basic
contract principles. Among those principles
are that courts should discern and implement
the intentions of the parties. It is not the
function of the court to rewrite or revise an
agreement when the intent of the parties is
clear. . . . Thus, when the intent of the
parties is plain and the language is clear and
unambiguous, a court must enforce the
agreement as written, unless doing so would
lead to an absurd result. See Sachau v.
Sachau,
206 N.J. 1, 5-6, (2011) ("A court's
role is to consider what is written in the
context of the circumstances at the time of
drafting and to apply a rational meaning in
12 A-1344-16T2
keeping with the expressed general purpose."
(internal quotations and citations omitted)).
[Quinn v. Quinn,
225 N.J. 34, 44-46 (2016)
(citations omitted).]
We have previously stated that:
Only those agreements which are fair and
equitable will be enforced when dealing with
family law.
The law grants particular leniency to
agreements made in the domestic arena, and
likewise allows judges greater discretion when
interpreting such agreements. See N.J.S.A.
2A:34-23. Such discretion lies in the
principle that although marital agreements are
contractual in nature, "contract principles
have little place in the law of domestic
relations."
[Guglielmo v. Guglielmo,
253 N.J. Super. 531,
541-42 (App. Div. 1992) (quoting Lepis v.
Lepis,
83 N.J. 139, 148 (1980)) (citations
omitted).]
Here, after reciting the law governing an application for
relief pursuant to Rule 4:50-1(f), the motion judge stated:
[T]he original application to Troyan indicated
that [p]laintiff would receive [fifty percent]
of the marital portion of [d]efendant's
retirement plan. An additional $13,175 credit
was to be given to [d]efendant from the
proceeds of the QDRO. As set forth in the
[QRBCO] . . . [p]laintiff was to receive
$84,235. According to [d]efendant's
representation, [p]laintiff actually received
about $112,000, while [d]efendant received
about $53,000. . . . Based on the foregoing,
the court finds it to be inequitable to allow
the current distribution of [d]efendant's
retirement plan to stand without giving
13 A-1344-16T2
[d]efendant a full opportunity to make the
necessary inquiries of Troyan as to how the
QDRO was completed.
We agree. As we noted, the parties' MSA recited the marital
lifestyle was "very modest." The parties had little by way of
assets after nearly a twenty-four year marriage, and defendant's
TSP was the most valuable asset. Furthermore, after defendant
paid plaintiff alimony and child support, plaintiff's receipts
exceeded defendant's. Therefore, it was reasonable for the
parties' MSA to adopt an equal division rubric for the marital
assets and liabilities. Under these circumstances, plaintiff has
not advanced a plausible argument why defendant's TSP would be
divided in a manner whereby she received nearly seventy percent
of the asset.
The motion judge did not abuse his discretion by applying
Rule 4:50-1(f) to vacate the QRBCO. On their face, the facts
demonstrate permitting the QRBCO to stand would be contrary to the
intent of the parties' MSA and would work an unjust result. For
these reasons, we are also satisfied a plenary hearing was not
necessary to address the circumstance relating to the submission
of the QRBCO by the parties' counsel to the court for signature.
14 A-1344-16T2
The parties' intent regarding division of the TSP was clearly
expressed in the terms of the MSA.1
IV.
Plaintiff challenges the motion judge's award of $4000 in
counsel fees to defendant for the motion filed to enforce
litigant's rights. Plaintiff argues the motion judge failed to
analyze the requisite factors of Rule 5:3-5(c). She also asserts
the judge's reasoning is unclear because he assumed the parties
were in mediation to address the TSP and that plaintiff failed to
comply with the mediator's order to execute a new QRBCO. Plaintiff
also argues the motion judge's finding she acted in bad faith
because she retained Troyan to prepare a rebuttal report to the
Pension Appraiser's report was erroneous.
Rule 5:3-5(c) sets forth nine factors the court must consider
in making an award of counsel fees in a family action.
Essentially,
in awarding counsel fees, the court must
consider whether the party requesting the fees
is in financial need; whether the party
against whom the fees are sought has the
ability to pay; the good or bad faith of either
1
We note plaintiff does not contest how the motion judge
determined the $54,000 sum, namely, to award one-half the
difference of the figures determined by each party's expert.
Although the better practice would have been to hold a plenary
hearing before determining the figure, plaintiff's argument for a
plenary hearing is limited only to the facts surrounding submission
of the QRBCO by the parties' counsel to the court. R. 2:5-1(f)(1).
15 A-1344-16T2
party in pursuing or defending the action; the
nature and extent of the services rendered;
and the reasonableness of the fees.
[Mani v. Mani,
183 N.J. 70, 94-95 (2005)
(emphasis omitted).]
Even when there is not a financial disparity between the parties,
"where a party acts in bad faith the purpose of a counsel fee
award is to protect the innocent party from unnecessary costs and
to punish the guilty party." Welch v. Welch,
401 N.J. Super. 438,
448 (Ch. Div. 2008) (citing Yueh v. Yueh,
329 N.J. Super. 447, 461
(App. Div. 2000)).
Fees in family actions are normally awarded
to permit parties with unequal financial
positions to litigate (in good faith) on an
equal footing. With the addition of bad faith
as a consideration, it is also apparent that
fees may be used to prevent a maliciously
motivated party from inflicting economic
damage on an opposing party by forcing
expenditures for counsel fees. This purpose
has a dual character since it sanctions a
maliciously motivated position and
indemnifies the "innocent" party from economic
harm.
[J.E.V. v. K.V.,
426 N.J. Super. 475, 493
(App. Div. 2012) (citations omitted) (quoting
Kelly v. Kelly,
262 N.J. Super. 303, 307 (Ch.
Div. 1992)).]
As the court noted in Kelly,
where one party acts in bad faith, the
relative economic position of the parties has
little relevance. The purpose of the award
is to protect the "innocent" party from
unnecessary costs and to punish the "guilty"
16 A-1344-16T2
party. The court should afford protection and
impose punishment regardless of the assets
available to the innocent party. Accordingly,
the need to produce economic information
lessens as the "bad faith" of the party
against whom fees are sought increases;
conversely the court may not award fees in the
absence of disclosure demonstrating economic
disparity unless the moving party shows "bad
faith".
[
262 N.J. Super. at 307.]
The motion judge found that:
Plaintiff acted in bad faith by demanding
[d]efendant obtain information from Troyan,
Inc., the preparer of the original [TSP's]
QDRO only to turn around and utilize Troyan,
Inc. to prepare her own expert report. In
other words, [p]laintiff required [d]efendant
to obtain material from Troyan only to herself
use Troyan as her own expert. This course of
action resulted in a significant delay that
was both unneeded and unnecessary. . . .
Defendant was not unreasonable in filing the
present motion, as there had been a violation
of a prior order by [p]laintiff. Defendant's
motion is predicated upon [p]laintiff's
noncompliance with the prior order. The court
finds [p]laintiff's conduct to be unacceptable
for reasons stated above.
Contrary to plaintiff's argument, the motion judge did not
make a finding of bad faith because plaintiff retained Troyan.
Rather, the judge found bad faith due to the delay plaintiff
occasioned by failing to grant defendant timely access to Troyan's
records, only to then return to Troyan when it suited her needs.
17 A-1344-16T2
Moreover, the judge's finding regarding bad faith did not pertain
to the mediation.
Finally, because the judge granted counsel fees as a part of
a motion to enforce litigant's rights, and found plaintiff had
acted in bad faith, he was not required to address the factors
relating to the parties' financial circumstances, namely, Rule
5:3-5(c)(1), (2), (4), and (6). The record demonstrates counsel
fees were warranted given the effort required of defendant to
extract information from Troyan, to which plaintiff lent no
assistance. Additionally, defendant prevailed and plaintiff did
not. Therefore, the record adequately supports the award of
counsel fees to defendant pursuant to the remaining applicable
factors, specifically Rule 5:3-5(c)(3), (7), and (8).
Affirmed.
18 A-1344-16T2
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