Before Judges Stern, Kestin and Steinberg.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant appeals from the trial court's order clarifying and modifying the provision in the parties' 1981 judgment of divorce which purported to distribute defendant's pension equitably. We affirm.
Judge O'Donnell, who tried the contested issues at the time of the divorce, including those relating to equitable distribution, expressed his findings and conclusions in letter opinions dated May 4 and May 26, 1981. In making his equitable distribution determination regarding the pension, the judge expressly relied on Kikkert v. Kikkert, 177 N.J.Super. 471 (App. Div.), aff'd, 88 N.J. 4 (1981), and determined that that asset of the sixteen-year marriage should be distributed equally. After applying the coverture fraction, the judge calculated the marital value of the pension at the time the complaint was filed at $433.63 per month and, assuming defendant's retirement at age sixty-five, the judge made the following award in the June 30, 1981 judgment of divorce:
[U]pon defendant attaining the age of 65 years, plaintiff shall be awarded one-half of defendant's pension, at its value on August 1, 1979 in the amount of $433.63, or $216.82 per month[.]
In 1987, after qualified domestic relations orders (QDROs) were authorized by federal statute, a consent order was entered to satisfy the requirements of the pension administrator. The order provided, inter alia, that plaintiff was:
to begin receiving payments in the amount of $216.62 [sic] per month at the time the participant [defendant] reaches the age of 65 years. . . .
Defendant, however, retired on January 14, 1996, at the age of fifty-six and began collecting his pension. By letter dated February 8, 1996, the pension administrator advised plaintiff of that fact and proposed to begin immediate payment to her of the dollar share fixed in the QDRO, $216.62 per month. On February 26, the pension administrator's position had changed to one of strict compliance with the terms of the order:
[Y]ou will commence your portion of the pension benefit payment of $216.62 . . . when Mr. John Korbeil reaches age 65.
After commencement, your pension payments will be made over Mr. Korbeil's lifetime. If Mr. Korbeil predeceases you before you commence your benefit, no payments will be made to you.
In September 1996, plaintiff filed a post-judgment motion seeking immediate payment of her share of defendant's pension and requiring defendant to pay plaintiff arrears that had accrued since defendant started receiving the pension. Defendant opposed the motion, claiming that, because he had retired early, plaintiff was not entitled to the full amount set forth in the judgment of divorce.
On October 21, 1996, Judge Herr ordered the parties to "retain an actuary to calculate the marital value of Defendant's AT&T pension pursuant to the Final Judgment of Divorce dated June 30, 1981, and the amount that would be distributed to plaintiff if one-half that value were paid to her monthly beginning on January 13, 1996, defendant's retirement date."
In December 1997, plaintiff filed another motion seeking arrears and an order compelling payment of $216.41 [sic] per month from defendant's pension. Defendant presented the court with a report from actuary Otis Ray, which said plaintiff was entitled to a monthly pension of $93.23. However, the Ray calculation was made on the erroneous assumption that the payment at issue was on a deferred vested pension and not a service pension.
Judge Bernhard recognized this error when he ruled in a January 23, 1998 proceeding: "[T]here's no question that Mr. Ray's computations are in error . . . they don't deal with the computation of [this] service pension and he gives you several indications that his computations don't apply if we're talking about a service pension[.]" Judge Bernhard denied plaintiff's motion without prejudice, however, on the basis that "no one has really complied with . . . the order of the 21st of October ...