[239 NJSuper Page 250] Plaintiff Poppy Wajda was 15 when she married defendant Anthony Wajda; he was 21. They divorced 20 years later, but immediately reconciled and continued to live together as husband and wife without remarrying for nearly ten years until they finally separated. This suit followed. The most novel of the many issues presented by this litigation is whether retirement benefits acquired during a period of cohabitation after a divorce are subject to equitable distribution under N.J.S.A.
2A:34-23 or some other non-statutory equitable remedy. The court makes the following findings of facts.
In 1978, at the uncontested matrimonial hearing in Monmouth County, plaintiff was represented by counsel. Defendant was indifferent to his wife's complaint for divorce, did not contest it and did not appear. The judgment awarded plaintiff custody of the four children of the marriage: Jacqueline was 19 and attending college, Steven, 17; Sandra, 14, and Christina, 7. In addition to child support of $450 a week, the court awarded weekly alimony of $225. The judgment further provided that "the plaintiff may continue to reside in the matrimonial residence to the exclusion of the defendant. . . ."
The judgment also addressed counsel fees, responsibility for medical payments, debts and title to the station wagon. It made no mention of any pension or equitable distribution of the residence except to require defendant to remove himself in ten days. Plaintiff told the court she was not claiming an interest in her husband's pension then valued at $25,000.
What happened next is sharply disputed. Plaintiff testified that when she returned home after her court appearance and told defendant she was divorced, he said he didn't want to leave and that he would rectify his drinking problem. They "would give it another chance," as plaintiff said, and so they continued where they left off.
Defendant, on the other hand, testified that he agreed to remain home for the sake of the children and that he made it clear to plaintiff that when the youngest child, Christina, was emancipated he would leave home.
The court does not credit defendant's testimony. Defendant would have the court believe that he simply camped at the former marital residence in West Long Branch from time to time while, with plaintiff's knowledge, he continued to have relationships with other women. This plaintiff is a woman who would never have tolerated such an arrangement.
When plaintiff and defendant returned from a trip to Florida after the divorce, they told their children that they had remarried. Plaintiff continued her role as "wife," mother, housekeeper, helpmate and companion to her husband. They went out to dinner together, they vacationed together, they went to union functions together, and they continued to raise their family and to have conjugal relations until December 11, 1987. Defendant continued to be financially responsible for the maintenance of the home and the support of the family. During this period plaintiff seldom worked outside the home. The question of the divorce judgment was not discussed; it was simply ignored.
There is sufficient credible evidence for the court to conclude that after the divorce the parties reconciled. See Brazina v. Brazina, 233 N.J. Super. 145, 558 A.2d 69 (Ch.Div.1989). This is so even though the parties continued having "marital" disputes, with defendant absenting himself from time to time but always returning home. The court takes judicial notice of the final orders entered in 1987 and 1988 against defendant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-1 et seq. There now remains the task of resolving the legal issues generated by the divorce, reconciliation and subsequent separation.*fn1
Defendant's Retirement Benefits.
Through his membership in the International Union of Operating Engineers, defendant has a pension with a present value of $33,566 and an annuity worth $264,529 less a loan of $70,000. Plaintiff first contends that, since the judgment of divorce is silent about the distribution of the pension and annuity, this court is now free to exercise its power of equitable distribution with respect ...