June 27, 2007
ROY MASTORIO, PLAINTIFF-APPELLANT,
CHRISTINE MASTORIO,*FN1 DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FM-12-2214-98F.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued April 19, 2007
Before Judges Lefelt and Sapp-Peterson.
In this matrimonial matter, plaintiff Roy Mastorio appeals from the entry of a post-judgment order denying his application for an order directing that defendant Christine Mastorio must pay a $78 monthly survivor benefit service fee that was not included in the parties Property Settlement Agreement (PSA). We affirm.
The parties were divorced on June 2, 1999, in New Jersey after a marriage of twenty-seven years. The PSA specifically provided that (1) defendant was entitled to an equal share of plaintiff's pension from his then employer, General Motors, calculated from the date of the marriage to the date of the filing of the divorce complaint, and (2) the pension benefits would be paid pursuant to a Qualified Domestic Relations Order (QDRO) that was to be prepared by William Troyan, Inc.
On September 4, 2002, plaintiff filed a motion to reduce alimony because he was permanently disabled and his income was significantly lower. When plaintiff filed the motion, defendant was also permanently disabled and Social Security was the sole source of her annual $7,380 income. After more than a year of negotiations, the parties entered into a consent order reducing alimony to $125 weekly, retroactive to the date of the filing of the motion.
Within days after the entry of the consent order, plaintiff filed for early retirement based upon his disability. In doing so, plaintiff was no longer entitled to receive payments from his Metropolitan Life Disability policy which, under the consent order, was to be the source for defendant's alimony payments. Consequently, once plaintiff retired, he failed to voluntarily make any support payments.
On June 21, 2004, plaintiff filed a motion to eliminate his obligation to pay alimony altogether. Plaintiff claimed that his income substantially changed and that he could no longer afford the $125 weekly alimony payments. The motion also sought to have defendant pay the $78 monthly survivor benefit servicing fee.
On July 24, 2004, the motion judge, without separately or specifically addressing the $78 monthly survivor benefit servicing fee, denied the motion, noting,
Plaintiff's motion to reduce/terminate alimony is denied, without prejudice, as plaintiff failed to demonstrate a prima facie showing of changed circumstances in accordance with Lepis v. Lepis, 83 N.J. 139 (1980). The Court makes this finding based upon the Consent Order dated December 17, 2003, whereby alimony was reduced by way of agreement between the parties, and, thereafter, less than one month after execution of the Consent Order, plaintiff applied for pension eligibility. Under the circumstances, the Court finds that insufficient time passed for plaintiff to establish changed circumstances to support the request to terminate alimony.
Plaintiff appealed that decision, which we affirmed in an unpublished opinion. Mastorio v. Mastorio, No. A-0012-04T1 (App. Div. June 20, 2005).
On May 25, 2005, slightly less than a month before we issued our June 20, 2005 opinion, Middlesex County Probation initiated an enforcement action against plaintiff to collect accumulated arrears. Plaintiff agreed to pay defendant a lump sum payment of $2,500 towards outstanding arrears and defendant agreed to waive the remainder, which totaled approximately $1,000. The $125 weekly alimony was continued.
On June 16, 2006, plaintiff filed yet another motion to reduce alimony. This time, plaintiff, in his certification, stated that the court's July 24, 2004 decision did not address "my request to have the Defendant reimburse me for the monthly amount of $78.00 being deducted from my pension for HER benefit and HER benefit alone. There was absolutely no mention of this payment in the Judgment of Divorce or Property Settlement Agreement[.]"
The court denied the motion. In the statement of reasons contained in the order, the court stated,
1. Plaintiff's motion to reduce plaintiff's alimony obligation with respect to the payment of the service fee associate[d] with the survivor pension benefits is denied.
2. Plaintiff's attorney drafted the Amended Final Judgment of Divorce, dated October 27, 2000 ("JOD"), and the Amended Domestic Relations Order Re: General Motors Hourly-Rate Employees Pension Plan, dated January 29, 2001 addressed to plaintiff's pension benefits. To the extent there was a service fee associated with the division of plaintiff's pension benefits and/or the inclusion of a service fee for the payment of survivor benefits, then plaintiff and his counsel could, and should, have determined the amount of such fee(s) and included an appropriate provision regarding the payment of such fee(s). However, neither document stated an obligation to pay such service fee(s). In accordance with case law, if there is an ambiguity i[n] an agreement, the agreement shall be strictly construed against the drafter. See Karl's Sales & Serv. v. Gimbel Bros., 249 N.J. Super. 487, 493 (App. Div. 1991). Moreover, when plaintiff retired voluntarily and the parties entered into a consent order, dated December 19, 2003, reflecting plaintiff's retirement status, plaintiff and his counsel had to have been aware of such service fee(s) at that time and plaintiff failed to address the issue as part of the consent order dated December 19, 2003. Additionally, the parties recently executed a consent order, dated March 17, 2006, that reduced alimony arrears owed by plaintiff to defendant. The issue of the service fee should have been raised by plaintiff prior to negotiating and obtaining the consent order dated March 17, 2006 in which defendant forgave alimony arrears due and owing to her as defendant may not have agreed to forgive alimony arrears if she knew that plaintiff intended to relitigate the issue of the service fee. Under these circumstances, plaintiff is obligated to pay such fee(s).
3. Plaintiff's motion is further denied as the issue of the survivor pension service fee was included among the relief requested as part of the motion that resulted in the Court's Order dated July 23, 2004. The plaintiff appealed the Court's Order dated July 23, 2004. The Appellate Division affirmed the Court's Order dated July 23, 2004. Plaintiff's failure to include the survivor benefit service fee issue as part of the appeal of the Court's Order dated July 23, 2004 does not justify relitigation of the issue.
On appeal, plaintiff contends the court's decision was based upon improper application of Karl's Sales & Serv. v. Gimbel Bros., supra, 249 N.J. Super. 487, 493 (App. Div.), certif. denied, 127 N.J. 548 (1991), where we held that any ambiguity in an agreement is to be strictly construed against the drafter of the agreement. Id. at 493. Plaintiff argues that this case does not involve ambiguity, but, instead, who should pay the fee, an issue that was never addressed in the FJD or PSA. Under such circumstances, plaintiff contends the proper analysis is that which was articulated by the Chancery Division judge in Aarvig v. Aarvig, 248 N.J. Super. 181 (Ch. Div. 1991):
[I]f the agreement is silent as to a circumstance which thereafter arises, the parties may not be left without an agreement. So long as the parties intended to be bound by their agreement and a court is able to fill any gaps necessary to achieve a fair and just result, the contract may be modified by the addition of reasonable terms. [Id. at 186].
We agree with plaintiff that this is not a case of ambiguity in the agreement. Nothing in the record suggests that the parties ever addressed who was responsible for the survivor benefit servicing fee. Nonetheless, we are satisfied that the motion judge properly denied the motion.
First, the June 16, 2004 motion sought to eliminate alimony altogether. The issue of the pension service fee was simply one of the reasons why plaintiff sought a reduction in his "alimony payments to nothing." The certification did not proffer the issue as a separate or additional prayer for relief and, even if plaintiff intended it as such, the court denied any other relief sought in the motion "without prejudice."
Second, plaintiff did not seek reconsideration of the July 23, 2004 order. Instead, plaintiff filed an appeal where he could have raised the issue again but chose not to do so. Crews v. Crews, 164 N.J. 11, 17 (2000). Thus, it would be unfair, in the absence of changed circumstances, to permit plaintiff the opportunity to once again revisit this issue. Id. at 24.
Third, defendant's conduct prior to the filing of the 2006 post-judgment motion is similar to his conduct prior to filing the 2004 motion. He once again waited until a pending alimony modification action was resolved before filing another alimony reduction motion. Defendant agreed to a $1,000 reduction in arrears. Throughout the entirety of the yearlong enforcement action, the monthly survivor benefit service fee was being deducted from plaintiff's pension. Plaintiff never raised the issue during any of the negotiations. Rather, once his arrears were resolved, resulting in approximately $1,000 of the outstanding arrears being extinguished, he filed yet another motion to reduce alimony, claiming judicial error in failing to address the issue when first raised in the 2004 motion.
Fourth, since the issue was first raised in the 2004 motion, any claim that the court mistakenly failed to address the issue ostensibly because there "were many other issues raised in the prior Motion" should have been resolved via formal motion to reconsider pursuant to Rule 4:49-2, which provides,
Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.
Plaintiff filed no such motion, but instead waited two years to bring to the court's attention an alleged oversight on the part of the court.
Finally, the 2006 motion did not provide a basis for relief premised upon changed circumstances and plaintiff's supporting certification so acknowledges. Plaintiff states, "[a]lthough my income is higher than that of the Defendant, my expenses are much higher than her expenses. This was true at the time of the 2004 Motion and it is still true. I attach hereto my 2004 CIS which remains unchanged and demonstrates my expenses and my limited income." (Emphasis added). The motion judge determined in 2004 that there had been an insufficient showing of changed circumstances to warrant any reduction in alimony and we affirmed that decision on appeal. We discern no basis to reach a contrary decision two years later when nothing has changed.
"Each and every motion to modify an alimony obligation 'rests upon its own particular footing and the appellate court must give due recognition to the wide discretion which our law rightly affords to the trial judges who deal with these matters.'" Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006) (quoting Martindell v. Martindell, 21 N.J. 341, 355 (1956)). In applying this standard of appellate review, we conclude there was no abuse of discretion in the judge's denial of defendant's motion for reimbursement of the $78 monthly survivor benefit servicing fee.