KATHLEEN CONNORS v. JAMES A. CONNORS, JR

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4641-18T4

KATHLEEN CONNORS,

          Plaintiff-Appellant,

v.

JAMES A. CONNORS, JR.,

          Defendant-Respondent.


                   Submitted September 14, 2020 - Decided October 23, 2020

                   Before Judges Currier and Gooden Brown.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Hunterdon County,
                   Docket No. FM-10-0130-16.

                   The Deni Law Group, LLC, attorneys for appellant
                   (William P. Deni, Sr., of counsel; Aleida Rivera, on the
                   briefs).

                   The DeTommaso Law Group, LLC, attorneys for
                   respondent (Michael J. DeTommaso, Kevin J.
                   Lauerman and Andrew M. Shaw, on the brief).

PER CURIAM
       In this post-judgment matrimonial litigation, plaintiff Kathleen Connors

appeals from two provisions of a May 14, 2019 order 1 regarding the distribution

of defendant's 401(k) account and the denial of her request for counsel fees.

After a review of her contentions in light of the record and applicable principles

of law, we affirm the order regarding the 401(k) account distribution. However,

because the court did not provide any analysis or reasons for the denial of

counsel fees, we reverse and remand on that limited issue.

       The parties were married for twenty-seven years when plaintiff filed for

divorce in 2015. They agreed to arbitrate their disputed issues and executed a

waiver permitting the arbitrator to also serve as a mediator. In 2018, following

a day of mediation, the parties reached an agreement on all of their disputed

issues. The arbitrator prepared a memorandum of understanding (MOU) which

was signed by both parties and their counsel that day.

       Pertinent to this appeal, the MOU included the following paragraph:

             Defendant's 401(k):

             The balance of . . . [d]efendant's 401(k) as of the date
             on which [p]laintiff filed her [c]omplaint was
             approximately $340,000. The parties stipulate that
             [p]laintiff is entitled to receive half, $170,000, which
             shall be accomplished by way of a [QDRO] . . . . The


1
    An amended order was issued May 22, 2019 to correct a typographical error.
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            cost of the preparation shall be shared equally between
            the parties.

      Defendant agreed to pay plaintiff $730,464 to satisfy all claims of

equitable distribution. The MOU directed plaintiff's share of defendant's 401(k)

account – $170,000 – to be applied to the equitable distribution obligation. The

MOU further stated it was an enforceable agreement and it would be

incorporated into a marital settlement agreement (MSA).

      Defendant prepared a proposed MSA in July 2018 and plaintiff responded

with requested modifications. One of her submissions was a request to include

language entitling her to the gains and losses on her share of the 401(k) account

from the filing date of the complaint to the date of distribution in addition to her

half of the account. Defendant disagreed with the proposed additional language

because it was not the parties' agreement.

      Defendant moved for the entry of a dual final judgment of divorce

(DFJOD) incorporating the terms of the MOU. Plaintiff opposed the motion,

asserting the parties needed to return to arbitration to clarify the MOU regarding

the distribution of the 401(k) account and an additional issue. Plaintiff certified,

however, that she agreed with the MOU prepared by the arbitrator.

      The trial court granted defendant's motion stating: "[T]here were not any

issues to arbitrate because there is an enforceable agreement between the parties

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executed via the [MOU]." In November 2018, following an uncontested divorce

hearing, the trial court entered a DFJOD incorporating the MOU.

      In April 2019, plaintiff filed a post-judgment motion seeking enforcement

of the MOU and counsel fees and costs. Plaintiff argued she was entitled to

certain relief, including the gains and losses on the $170,000 from the complaint

filing date in 2015 to its distribution. Although plaintiff agreed the MOU did

not include language entitling her to gains and losses, she asserted both parties

understood the 401(k) distribution was to be based on the formula articulated in

Marx v. Marx,  265 N.J. Super. 418 (Ch. Div. 1993).

      Defendant opposed plaintiff's motion, arguing her request was not the

agreement articulated in the MOU. He outlined concessions he made to reach a

settlement of the equitable distribution. In a cross-motion, defendant requested

counsel fees. Both parties requested oral argument on their motions.

      On May 14, 2019, without oral argument, the trial court entered an order

and written statement of reasons, finding the MOU was "clear and

unambiguous." The court noted two separate paragraphs of the MOU stated that

plaintiff would receive a fixed sum of $170,000 from defendant's 401(k) by way

of a QDRO. The court denied either party counsel fees, finding an award was




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not warranted as "the contentious relationship between the parties necessitated

this motion."

      On appeal, plaintiff argues the trial court: (1) mistakenly concluded she

was not entitled to market fluctuations on her marital share of defendant's

401(k); (2) failed to conduct a plenary hearing; (3) wrongfully refused to grant

her request for oral argument; and (4) erred in denying her request for counsel

fees and for failing to make findings of fact and conclusions of law.

      We defer to family court fact findings "when supported by adequate,

substantial, credible evidence." Fattore v. Fattore,  458 N.J. Super. 75, 83 (App.

Div. 2019) (quoting Cesare v. Cesare,  154 N.J. 394, 411-12 (1998)). However,

this court is not bound by "[a] trial court's interpretation of the law[,] and the

legal consequences that flow from established facts are not entitled to any

special deference."    Manalapan Realty, L.P. v. Twp. Comm. of Twp. of

Manalapan,  140 N.J. 366, 378 (1995) (citations omitted). "To the extent that the

trial court interprets the law and the legal consequences that flow from the

established facts, we review its conclusions de novo." Motorworld, Inc. v.

Benkendorf,  228 N.J. 311, 329 (2017); D'Agostino v. Maldonado,  216 N.J. 168,

182 (2013); Manalapan Realty,  140 N.J. at 378.




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       "Interpretation and construction of a contract is a matter of law for the

court subject to de novo review." Fastenberg v. Prudential Ins. Co. of Am.,  309 N.J. Super. 415, 420 (App. Div. 1998) (citing Bradford v. Kupper Assocs.,  283 N.J. Super. 556, 583 (App. Div. 1995)). With that said, "[t]he law grants

particular leniency to agreements made in the domestic arena," thus allowing

"judges greater discretion when interpreting such agreements." Guglielmo v.

Guglielmo,  253 N.J. Super. 531, 542 (App. Div. 1992) (citing  N.J.S.A. 2A:34-

23).

       The parties submitted their marital issues to an arbitrator who also served

as a mediator. The mediation sessions resulted in an agreement on all issues

that was memorialized in a MOU. Plaintiff argues the MOU lacked language

regarding her entitlement to the 401(k) account's market gains and losses and

the court erred in not supplying missing terms necessary to implement the MSA.

We disagree.

       "Settlement of disputes, including matrimonial disputes, is encouraged

and highly valued in our system." Quinn v. Quinn,  225 N.J. 34, 44 (2016) (citing

Konzelman v. Konzelman,  158 N.J. 185, 193 (1999)). "Marital agreements . . .

are approached with a predisposition in favor of their validity and




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enforceability." Massar v. Massar,  279 N.J. Super. 89, 93 (App. Div. 1995)

(citing Petersen v. Petersen,  85 N.J. 638, 642 (1981)).

      "The basic contractual nature of matrimonial agreements has long been

recognized."    Pacifico v. Pacifico,  190 N.J. 258, 265-66 (2007) (citing

Harrington v. Harrington,  281 N.J. Super. 39, 46 (App. Div. 1995)). "The

polestar of [contract] construction is the intention of the parties . . . ." Atl. N.

Airlines, Inc. v. Schwimmer,  12 N.J. 293, 301 (1953). "The starting point in

ascertaining that intent is the language of the contract." Commc'ns Workers of

Am., Local 1087 v. Monmouth Cnty. Bd. of Soc. Servs.,  96 N.J. 442, 452 (1984)

(citation omitted). Importantly, "[i]t is not the real intent[,] but the intent

expressed or apparent in the writing that controls." Friedman v. Tappan Dev.

Corp.,  22 N.J. 523, 531 (1956) (citation omitted).

      We discern no reason to disturb the trial court's determination that the

MOU was clear and unambiguous regarding the distribution of the 401(k)

account. Two paragraphs addressed the retirement account, clearly stating that

plaintiff was entitled to half of the account – $170,000 – and that amount would

be paid by defendant towards plaintiff's share of the equitable distribution.

There was no reference in the MOU that plaintiff was entitled to credits or debits

for any market fluctuations or the application of the Marx formula.


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      Although the Chancery court in Marx established a formula for allocating

the marital share of a deferred distribution pension, there was no necessity for

the formula here because the parties stipulated in the MOU the specific amount

of plaintiff's share – $170,000. Plaintiff's contention that the trial court failed

to consider her assertion that the parties discussed Marx during their mediation

discussions was properly dismissed by the court as the final agreement of the

parties was memorialized in a written MOU.

      Plaintiff has not demonstrated that the parties intended her to receive

anything more than what was provided in "the language of the contract." See

Commc'ns Workers,  96 N.J. at 452 (citation omitted). The language in the MOU

is clear and there is no compelling reason offered to depart from its well-defined

provisions. As our Supreme Court has stated, we should not "create a new or

better contract or . . . add to, subtract from, modify, or alter any terms of the

agreement." Ibid.; Temple v. Clinton Tr. Co.,  1 N.J. 219, 225-26 (1948).

      Since there was no ambiguity in the MOU, a plenary hearing was not

necessary "to discern the intent of the parties at the time the agreement was

entered and to implement that intent." Quinn,  225 N.J. at 45 (citing Pacifico,

 190 N.J. at 267).




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      In addressing plaintiff's contention regarding oral argument, we

acknowledge the better course for the trial court was to grant plaintiff's requ est

for oral argument on her motion. Rule 5:5-4(a)(1) provides that "the court shall

ordinarily grant requests for oral argument on substantive and non-routine

discovery motions." However, the rule also permits a trial court to deny requests

for oral argument, "even in cases involving 'substantive' issues." Palombi v.

Palombi,  414 N.J. Super. 274, 285 (App. Div. 2010). This discretion gives

judges "the option of dispensing with oral argument . . . when no evidence

beyond the motion papers themselves and whatever else is already in the record

is necessary to a decision. In short, it is the sole purpose of these rules to

dispense with what is regarded as unnecessary or unproductive advocacy." Ibid.

(citing Fusco v. Fusco,  186 N.J. Super. 321, 328-29 (App. Div. 1982)).

      Despite the conflicting certifications, the trial court properly discerned

there were no factual disputes as to the specific issue at hand: the distribution of

the 401(k) account. The parties entered into an enforceable agreement – the

MOU – that had clear terms regarding the retirement account's allocation.

Plaintiff has not demonstrated the trial court needed any other evidence beyond

what was in the motion papers to make a decision. Therefore, it was not an

abuse of discretion to not entertain oral argument.


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      We turn to plaintiff's assertion that it was error to deny her request for

counsel fees. Although the judge referenced Rule 5:3-3(c) and RPC 1.5(a), she

did not make the required findings of fact and conclusions of law but instead

summarily denied plaintiff's application.      The failure to provide sufficient

reasoning for a decision on the fees, apart from a generic reference to the parties'

contentious relationship, prevents this court from conducting a meaningful

review. We therefore remand for the trial court to consider the factors under

Rule 5:3-5 and  N.J.S.A. 2A:34-23 and provide sufficient findings of fact and

conclusions of law as required under Rule 1:7-4. As we have stated, remand is

required when, in determining whether to award counsel fees, a trial court

provides "[s]imple omnibus references to the rules without sufficient findings."

Loro v. Colliano,  354 N.J. Super. 212, 228 (App. Div. 2002); see Giarusso v.

Giarusso,  455 N.J. Super. 42, 54 (App. Div. 2018) (directing the trial judge on

remand to "make specific findings of fact and conclusions of law in compliance

with Rule 1:7-4.").

      Affirmed in part, reversed in part and remanded for proceedings in

accordance with this opinion. We do not retain jurisdiction.




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