On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-11160-85.
Before Judges Lefelt, Fuentes and Falcone.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In an earlier decision involving plaintiff, Joseph T. Moore, and defendant, Roberta Moore, who divorced in 1985 after more than thirty-one years of marriage, we remanded for a hearing to determine whether defendant's one-third tax-free share of plaintiff's pension from the Teachers' Pension and Annuity Fund (TPAF) was to be calculated as of the date of divorce or the date of plaintiff's retirement. On the remand, the trial court determined that the latter option fulfilled the parties' intent, and neither plaintiff nor defendant objects to that determination. Instead, defendant in this appeal objects to the trial court's further determination that plaintiff has no obligation to pay defendant until plaintiff retires. Defendant contends that because plaintiff, who is a tenured professor at Montclair State University, continues to work beyond age seventy despite the parties' reasonable expectation that he would have retired at age sixty-five or at the latest age seventy, she was entitled to her pension share from plaintiff's present income beginning when plaintiff reached age seventy. Defendant also claims the trial court erred in denying her request for counsel fees. We find some merit in defendant's contentions, and reverse and remand.
The trial court's conclusion that plaintiff had no obligation to pay defendant any part of his pension"until he does retire" was based on the judge's fact finding that"there was no cutoff date, that there was no requirement that [plaintiff] retire.... [and that defendant's argument] that he has to now retire at 70 or pay [defendant] a distribution prior to retirement is not based on any evidence."
The judge based this finding on defendant's divorce attorney's testimony that in 1997, when plaintiff was about sixty-five years of age, there was no understanding of any fixed date for plaintiff's retirement. Indeed, when attempting to have plaintiff sign the Qualified Domestic Relations Order drafted by defendant's attorney, the attorney wrote plaintiff commenting that he did not need to stop work and that he could continue to work for another five years or more. However, that testimony relates to 1997 and did not relate to the situation in 1985, when plaintiff was about fifty-three years old and the property settlement agreement was negotiated and executed.
In 1985, according to defendant, the parties considered retirement age to be sixty-two or sixty-five. In addition, N.J.S.A. 18A:66-43(b) was in existence*fn1 and specifically mandated retirement for TPAF members at age seventy. The existence of this statute in 1985 supports a reasonable belief by the parties that a college professor in the TPAF could not work beyond age seventy.*fn2
Furthermore, the judge relied on plaintiff's testimony about the property settlement, which according to the judge, revealed that"[t]here was no discussion of retirement age." Actually, plaintiff testified that at the time of the divorce, he was not going to retire, which is of course not the point, and that he could not recall at that time"any discussions regarding [his] planned retirement."
Defendant in her testimony, however, explained that she believed that plaintiff would have to retire at age seventy in accordance with the statute. Her lawyer also acknowledged the existence of the statute and explained that at the time he knew that the statute required retirement at age seventy for New Jersey teachers because his mother had been a teacher.
The lawyer also explained why the parties made this"unusual arrangement." He testified that defendant"could have had more alimony if she had wanted to try the case on alimony, but she agreed to take a limited amount of alimony for a limited amount of time." In return, plaintiff"agreed to provide her with her share of the pension, but not value it at that time with that fraction, but rather to value it at the time that he left his employment or retired." Defendant realized, according to the lawyer, that she was unlikely to be able to earn as much money as plaintiff could as she had not been in the work force and did not have his advanced degrees. She felt that the pension would provide support when she was in her seventies and even less likely to be able to earn sufficient monies for her own support.
After considering all the testimony, along with N.J.S.A. 18A:66-43(b), and the absence of any actual conflicting testimony by plaintiff who simply could not recall any discussion about his retirement plans, we conclude that the competent credible evidence supports defendant's contention that both parties expected in 1985 that plaintiff would have to retire, at the latest, by age seventy. The judge's finding to the contrary is not supported by sufficient credible evidence in the record, and is rejected. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).
When these parties divorced, there were only two assets of any significance, the marital home, appraised at $123,000, and plaintiff's pension. The marital home was equitably distributed to plaintiff and defendant equally. Defendant, with the assistance of an inheritance, bought plaintiff's share of the home, lived there for some time, and recently sold the home for $365,000. The record does not reflect how defendant has used these funds.
In providing for distribution of plaintiff's pension in the December 1984 settlement agreement, which was incorporated into the 1985 divorce judgment, the parties agreed that defendant shall be entitled to her share of plaintiff's pension when plaintiff"retires or otherwise leaves his present employment for whatever reason." Thus, plaintiff's continued ...