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Raimo v. Brzezanski

January 22, 2008

ROSEMARIE RAIMO (F/K/A BRZEZANSKI), PLAINTIFF-RESPONDENT,
v.
JAY BRZEZANSKI, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-1471-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 18, 2007

Before Fuentes, Grall and Chambers.

Plaintiff Rosemarie Brzezanski, now known as Rosemarie Raimo, and defendant Jay Brzezanski married on March 8, 1980, and they were divorced on June 29, 2004.*fn1 Defendant appeals from three post-judgment orders entered in an action for divorce: an order compelling him to execute documents necessary to effectuate an agreed distribution of his pension, entered on March 20, 2007; an order requiring plaintiff to pay defendant one-half of the proceeds she obtained from the sale of military memorabilia, entered on April 13, 2007; and an order compelling defendant to pay counsel fees and costs in the amount of $2000 as a sanction for failure to comply with the March 20, 2007, order, entered on April 23, 2007. We affirm the order of March 20, 2007, reverse the orders of April 13 and 23, 2007, and remand for further proceedings relevant to the military memorabilia.

The final judgment of divorce reflects that the Brzezanskis freely and voluntarily entered into a property settlement agreement, and it directs plaintiff's attorney to prepare a supplemental judgment within fourteen days. The supplemental judgment was never prepared. As a consequence, the Brzezanskis' full property settlement agreement cannot be understood without consideration of three documents: a draft written agreement prepared prior to the final hearing; oral modifications placed on the record on June 29, 2004; and a subsequent written modification signed by the parties on July 23, 2004.*fn2 On the basis of the agreements, as reflected in those documents, and the papers submitted on the post-judgment motions, we address separately each of the orders from which defendant appeals.

I.

The facts pertinent to the order of March 20, 2007, are easily stated. The agreement relevant to distribution of defendant's military pension is clear. It provides:

Husband is also entitled to a military pension. Husband will fully cooperate with Wife in signing all documents necessary to enable and to ensure that the Wife will receive fifty percent (50%) of Husband's entitlement (military pension), which was accumulated during coverture. The Wife's attorney shall prepare the necessary documents to facilitate and secure the Wife's interest in Husband's military pension and submit same, together with any other documents necessary to the appropriate military authority and to Husband's attorney for review and completion, if required.*fn3

By notice of motion dated January 26, 2007, plaintiff moved for an order compelling defendant to execute a qualified domestic relations order to facilitate the transfer of her share of defendant's pension. She also asked the court to find defendant in violation of litigant's rights and award counsel fees in the amount of $1974.65. According to the papers submitted in support of that motion, plaintiff's attorney mailed defendant's attorney a consent order for signature. The prepared consent order provided for plaintiff to "receive fifty percent (50%) of the service member's entitlement in the United States military pension/disposable retired pay that was accumulated during the marriage period." Plaintiff represented that defendant did not respond to the letter.

Defendant opposed plaintiff's enforcement motion on the ground that his consent was not necessary. He also represented that he did not sign the prepared consent order because plaintiff's attorney had neglected to enclose it in the envelope with the cover letter.

The motion judge denied oral argument and entered an order compelling defendant to "execute a QDRO, and any other necessary documents, to facilitate distribution of [p]laintiff's 50% entitlement share of [d]efendant's military pension pursuant to the parties' property [settlement] agreement." The judge denied plaintiff's requests to find defendant in violation of litigant's rights and award counsel fees. In a brief statement of reasons appended to the order, the judge explained: "The [c]court orders the [d]efendant to sign the QDRO that the [p]laintiff's counsel has prepared within 14 days of the filing date of this Order. If the [d]efendant fails to comply with the [c]court's Order the [c]court will sanction the [d]efendant with [p]laintiff's counsel fees upon receipt of a certification of attorney services as well as a proposed order."

On appeal defendant argues that the judge did not give an adequate explanation of reasons. While we do not approve of the manner in which the judge addressed or explained his reasons for the ruling on the motion, the judge's failure to comply with Rules 1:6-2(d), 1:7-4 and 5:5-4(a) was not prejudicial to defendant. See R. 2:10-2. Given the clarity of the parties' agreement on distribution of defendant's pension and the terms of the document plaintiff asked defendant to execute to facilitate her receipt of her share of that pension, entry of an order compelling defendant to sign the document was entirely proper. The order had no other operative provision. While the statement of reasons appended to the order threatened to impose a sanction in the form of counsel fees if defendant did not comply with the order, that statement had no legal effect. The order requires nothing more than compliance with the undisputed terms of the parties' agreement and required no further explanation. Cf. Curtis v. Finneran, 83 N.J. 563, ...


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