On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-306-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Chambers.
Plaintiff, Susan D. Settenbrino, appeals from the order of October 4, 2006, denying her application to compel her former husband defendant, Jeffrey Schwartz, to pay to her additional monies from defendant's 401(k) plan. At the time the parties were divorced, the marital portion of this asset was valued at $65,000. The court indicated that it would divide the asset equally between the parties, so that plaintiff's share at that time was $32,500. By the time plaintiff's share of the 401(k) was distributed to her, the value of this asset had declined significantly due to market fluctuations, so that she received only $18,724.61. She maintains that she is entitled to the balance of the $32,500. Plaintiff's last application to the trial court for the additional monies from this 401(k) plan was denied. We affirm.
The parties were divorced in New York State. The trial judge there entered a comprehensive twenty-three page written decision dated August 22, 2000. With respect to the equitable distribution of defendant's 401(k) retirement plan, the trial judge found that the value of the marital portion of the account before taxes was $65,000. He divided this asset equally between the parties, so that plaintiff's share was $32,500. The Judgment of Divorce, dated December 5, 2000, provided for distribution of defendant's 401(k) retirement plan as follows:
ORDERED AND ADJUDGED, that the plaintiff shall receive the sum of $32,500 as her equitable share of defendant's 401(k) retirement plan, the transfer of the same to be accomplished by a Qualified Domestic Relations Order.
The companion Qualified Domestic Relations Order ("QDRO "), also entered on December 5, 2000, provided in Paragraph 3:
The Alternate Payee is awarded an amount equal to $32,500.00 of the Accrued Benefit and the Plan is ordered to pay to the Alternate Payee such amount (and earning attributable to such amount from August 22, 2000 until the date of distribution) to the Alternate Payee in a lump sum cash payment on the earliest possible date permitted under the Plan. It has been ORDERED AND ADJUDGED that the defendant's 401(k) plan is valued as of March 21, 2000 to be $237,000.00 of this sum, $65,000 is determined to be marital property and plaintiff is to receive a 50% distributive award of the marital portion of the defendant's 401(k) to wit: the sum of $32,500.00 to be distributed by way of a separate QDRO, which shall direct deposit plaintiff's share into an IRA or 401(k) as designated by plaintiff to the plan administrator of the defendant's 401(k), so as to avoid any tax consequence to either party being occasioned by such transfer. [emphasis added]
The underlined language makes clear that plaintiff was to receive fifty percent of this marital asset. The QDRO specifically defined "Accrued Benefit" as "the sum of the Participant's Account balances under the Plan as of August 22, 2000" (the date of the trial judge's decision).
The monies were not transferred to plaintiff by defendant's plan administrator, Guardian Life Insurance Company of America ("Guardian") until April 1, 2001. Due to a downturn in the value of this asset, the sum transferred to plaintiff was only $18,724.61. The transfer document plaintiff received from Guardian indicates that from April 1, 2001, (the date of the transfer) until April 2, 2001, (the date of the statement), a period of a single day, the sum of $423.24 was lost in this investment, indicating that the investment was in rapid decline at that time.
In 2003, plaintiff filed a motion in New Jersey, where she resides, seeking, among other relief, to compel the transfer of the balance of the $32,500 into her account. The first motion resulted in an order issued by Judge Graziano on October 21, 2003, providing in paragraph 10:
Correcting the distribution of defendant's QDRO to reflect the court's Judgment of Divorce and the QDRO Order itself, which states that Plaintiff is to receive a "lump sum cash payment" of "$32,500 to be distributed by way of a separate QDRO."
In response to this order, Guardian wrote to plaintiff on December 15, 2003, explaining that the QDRO awarded her "an amount equal to $32,500 of the Accrued Benefit" and that accrued benefit was defined as "the sum of the Participant's Account ...