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Olski v. Olski


September 10, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-899-03D.

Per curiam.


Argued August 29, 2007

Before Judges Cuff and Lintner.

Defendant, George Olski, appeals from two Family Part orders executed on October 13, 2006, one requiring the preparation of a Domestic Relations Order securing plaintiff Julianne Olski's interest in George's police pension; and the second denying his motion to limit Julianne's life insurance benefits and terminate alimony upon remarriage, cohabitation, or retirement. We affirm the order requiring preparation of a Domestic Relations Order, but reverse in part the order limiting George's alimony obligation to accurately reflect the judge's ruling terminating alimony in the event Julianne remarries.

On May 19, 2004, following a contested divorce trial, Judge Micheletti entered a Final Judgment of Divorce. The relevant part of that judgment provided:

H. [George] shall have no interest in the employment pension of [Julianne]. [Julianne] will received 35% of [George's] pension entitlement through his employment as a police officer calculated to include all contributions made between May 18, 1980 [the date of marriage] and December 4, 2002 [the date of the divorce complaint]. The parties shall equally share the cost of preparation of a Domestic Relations Order to secure [Julianne's] share of [George's] pension. If survivor benefits are available, [Julianne] shall have the right to be designated as survivor beneficiary up to her 35% interest in the pension. [George] shall forward all survivor benefit option information to [Julianne] at least 60 days before he is required to make an election. [Julianne] shall be solely responsible for all costs attendant to [her] election of the survivor benefit. [George] shall receive his full share of the monthly stipend, as if no survivor benefit had been elected. (emphasis added).

The judgment also required George to maintain a life insurance policy in the amount of $100,000, naming the parties' daughter, Kimberly, as beneficiary until Kimberly is emancipated*fn1 and a second policy of $150,000, naming Julianne as beneficiary until alimony is terminated.

By agreement of counsel, the firm of Troyan & Associates, P.A. was retained to prepare the necessary Domestic Relations Order. On August 26, 2004, Rodney Troyan notified counsel that the Police and Firemen's Retirement System (PFRS) does not allow survivorship benefits for a former spouse. He also advised that George's pre-retirement death benefit is equal to group insurance totaling three and one-half times his last twelve months of compensation at the date of death plus a return of any employee contributions, while George's post-retirement group insurance benefit is equal to fifty percent of his compensation at the date of his retirement plus any excess employee contributions over and above the total accumulated pension payments received by him. Because the judgment referenced survivor benefits, Troyan did not provide an order for either pre- or post-retirement death benefits to Julianne. On May 6, 2005, Troyan advised that the total present value of George's pension was $683,282.53 and that his pre-retirement group life insurance death benefit was $309,498. He also advised that because George's post-retirement group life insurance death benefit was equal to fifty percent of his salary, it would not cover Julianne's share of George's pension.

In July 2005, George retained present counsel. After it became apparent that the parties could not agree on a final Domestic Relations Order, Julianne filed a motion on August 31, 2006, seeking a Domestic Relations Order designating her as the beneficiary of George's pre-retirement group life insurance policy to the extent of her 35% pension interest ($239,148.88) and 100% of George's post-retirement group life benefit. George responded with a cross-motion seeking to limit Julianne to the $150,000 life-insurance policy naming Julianne as beneficiary. He also sought an order concluding his alimony obligation upon Julianne's remarriage or cohabitation.

Judge James McGann was assigned to the motion due to Judge Micheletti's retirement. On the return date, George argued that the use of the words "[i]f survivor benefits are available," conditioned his obligation to secure Julianne's interest in his pension only in the event PFRS allowed survivorship for a former spouse. Because such benefits are not available, George maintained that the intent of the order was to limit Julianne to the $150,000 life insurance policy tied to his alimony obligation. He asserted also that Julianne's motion was tantamount to an untimely appeal of Judge Micheletti's order because Julianne failed to file a notice of appeal in the Appellate Division within forty-five days.

Judge McGann found that it was Judge Micheletti's intent in crafting the Judgment to provide protection to Julianne, to secure her 35% interest in the pension benefits earned by George during the marriage. He then used his equitable powers to direct that the Domestic Relations Order be prepared designating Julianne as a beneficiary to the amount of her interest in George's pre-retirement group life insurance benefit, and 100% of his post-retirement group life benefit, not to exceed $239,148.88.

On appeal, George reprises his argument that Julianne's application represented an untimely appeal of a final order that required him to provide additional security only if survivorship benefits are available in his PFRS pension. He also argues that the judgment provision requiring him to designate Julianne as the beneficiary of a $150,000 life insurance policy until his alimony requirement is terminated provided sufficient security. He contends, for the first time on appeal, that it was inappropriate for Judge McGann to decide the issue on summary judgment. George also maintains that the order denying relief from his alimony obligation does not accurately reflect the judge's ruling, which granted his application insofar as terminating his alimony obligation in the event Julianne remarries.

We first address George's claim that it was inappropriate for the judge to determine the issues on summary judgment. Generally, an appellate tribunal need not consider questions not properly presented to a trial court unless the issue raised concerns matters of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Nevertheless, we note that neither party questions the determination made by Troyan concerning the present value of Julianne's equitable interest in the pension benefits earned by George during coverture. Judge Micheletti's written decision explained in detail his reasons for fashioning Julianne's equitable distribution interest in the pension at 35% rather than 50%. Neither party appealed that determination. Thus, the deferred-distribution method employed by Judge Micheletti to distribute Julianne's interest in George's pension and the 35% coverture fraction delineating that portion of the pension subject to equitable distribution remained uncontested following entry of the Judgment. See Claffey v. Claffey, 360 N.J. Super. 240, 256-57 (App. Div. 2003) (explaining the deferred-distribution method for distribution of a non-pensioner spouse's interest in pension benefits). As such, summary disposition was appropriate.

Equally unavailing is George's contention that Julianne's application represents an untimely appeal. Our review of the record satisfies us that Judge McGann correctly found that Judge Micheletti's intent in crafting the divorce Judgment was not to limit security for the payment of Julianne's interest to survivorship benefits but instead to use those benefits if available. Julianne's application sought to enforce that aspect of the Judgment of Divorce rather than to appeal from it. In his March 18, 2004, written opinion, Judge Micheletti made it clear that his alimony award was to provide Julianne with "a continuation of the standard of living enjoyed . . . prior to their separation," while the assessment regarding her interest in George's pension was to "fashion[] an appropriate award of equitable distribution." When employing the deferred distribution method, "the total gross sum to be received by the non-pensioner spouse can only be measured by the life of the pensioner spouse, because the benefit terminates upon his or her death." Id. at 258-59. Judge McGann was completely justified in using his equitable powers to provide for security through George's available group life policies.

George correctly points out that in reaching his decision on George's motion to provide for termination of alimony on remarriage, cohabitation or retirement, the record reflects that Judge Micheletti expressly granted "as to [re]marriage" but denied the motion as to cohabitation or retirement. The judge correctly noted that neither cohabitation nor retirement "automatically mandate[s] termination of alimony." See Boardman v. Boardman, 314 N.J. Super. 340, 346-47 (App. Div. 1998); see also Gayet v. Gayet, 92 N.J. 149, 150-55 (1983); Ozolins v. Ozolins, 308 N.J. Super. 243, 248-49 (App. Div. 1998); Silvan v. Sylvan, 267 N.J. Super. 578, 582 (App. Div. 1993); Deegan v. Deegan, 254 N.J. Super. 350, 354-58 (App. Div. 1992).

We affirm the order directing preparation of a Domestic Relations Order securing Julianne's interest with George's preand post-retirement group life insurance, as well as that portion of the order denying George's motion to limit Julianne to life insurance and terminate alimony upon cohabitation or retirement. We, however, reverse the order insofar as it denies termination of alimony in the event of remarriage and remand for correction to accurately reflect Judge McGann's decision. We do not retain jurisdiction.

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