On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FM-18-1083-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Graves and Lihotz.
Defendant Mary Ellen Overbay appeals from a post-judgment Family Part order dated May 10, 2005, denying her application to modify the Pension Plan and Savings Plan benefits she is entitled to receive from plaintiff's former employer, ExxonMobil, and an order dated July 18, 2005, denying her motion for reconsideration. After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm.
This is the second time this matter is before us. In our initial decision, we noted the parties had been married for more than thirty-one years prior to their divorce on September 17, 2002. We affirmed the trial court's decision to equally divide the marital assets and marital debts, but we remanded for reconsideration of "the appropriate amount of permanent alimony to be paid by plaintiff to defendant." Overbay v. Overbay, 376 N.J. Super. 99, 113 (App. Div. 2005). In this appeal, we must determine whether the trial court erred in denying defendant's application to modify the Amended Qualified Domestic Relations Order (QDRO) entered in connection with plaintiff's ExxonMobil Pension Plan on August 12, 2004. In addition, we must determine whether the trial court erred in denying defendant's request to be compensated for losses resulting from the delay in "the entry of the QDRO on the Pension Plan."
Following a five-day trial in May and July 2002, the trial court set forth its findings and conclusions in a seventeen-page written decision dated August 12, 2002. The trial court found that plaintiff, who was a long-term employee of ExxonMobil, had both an ExxonMobil Savings Plan and Pension Plan, which were subject to equitable distribution. In its written decision, the trial court rejected defendant's argument that her participation in the ExxonMobil Pension Plan should extend beyond April 19, 2001, the date when the divorce complaint was filed.
Plaintiff's Pension Plan. Plaintiff's pension plan with Exxon/Mobil shall be distributed under a qualified domestic relations order which awards 50% of the value of the plan interest during coverture to each of the parties. The defendant argues that she should share in all of the plaintiff's retirement rights and not just during the coverture portion. The defendant's position is that the parties had an agreement at the time of their marriage and that by giving up her career in exchange for allowing the plaintiff to pursue his career with Exxon/Mobil with the defendant to be a homemaker and mother that the coverture fraction not be applied in determining equitable distribution. In deciding this matter I don't believe that credibility is in issue. On the whole, I believe both parties testified truthfully. The court does not agree with the position taken by the defendant. The applicable case law on this subject is set forth in [Whitfield v. Whitfield, 222 N.J. Super. 36, 48 (App. Div. 1987); White v. White, 284 N.J. Super. 300, 303-04 (Ch. Div. 1995); Marx v. Marx, 265 N.J. Super. 418, 428 (Ch. Div. 1993).]
Thus, the Dual Judgment of Divorce (JOD) dated September 17, 2002, provided both the ExxonMobil Pension Plan and the ExxonMobil Savings Plan, as of April 19, 2001, were to be equally divided, and defendant's shares were to be distributed to her pursuant to QDROs, which were to be prepared by "[p]laintiff's attorney or an actuary chosen by him."
In a letter dated November 19, 2003, plaintiff's attorney advised defendant's attorney that ExxonMobil had elected to terminate plaintiff's employment and that March 26, 2004, was "the end date for his employment." The letter also explained there was "no flexibility on the March 26, 2004 end date," and it requested defendant's cooperation in finalizing the QDROs:
Mr. Overbay and I both believe it advisable for both parties to have a domestic relations order drafted, preliminarily approved by ExxonMobil, entered by the [c]court and qualified by ExxonMobil prior to the time of Mr. Overbay's termination in March 2004. Mr. Overbay believes that both parties will give strong consideration to taking a lump-sum benefit at the time of his termination and we will need a domestic relations order in place in advance in order for each of them to do so.
Please consult with your client and advise as soon as possible on this.
On December 24, 2003, plaintiff's attorney sent another letter to defendant's attorney together with "drafts of domestic relations orders for the ExxonMobil Pension Plan and Savings Plan." Plaintiff's attorney urged defendant's attorney to review the drafts and respond as soon as possible "as there is substantial time required for review and qualification of the
[o]rder[s] by ExxonMobil's consultants . . . and it is in both parties' interests to have the orders qualified and in place before Mr. Overbay leaves ExxonMobil at the end of March." In an e-mail to defendant's attorney on January 14, 2004, plaintiff's attorney asked for the "courtesy of a response," and on February 5, 2004, ...