On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-383-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Lyons.
Plaintiff Mark Panza appeals from an order entered on October 20, 2006 denying his motion for reconsideration of an order entered on August 18, 2006, which modified the parties' Property Settlement Agreement (Agreement), specifically altering equitable distribution of his Exxon Mobil savings plan.
The parties had agreed that plaintiff's Exxon Mobil savings plan would be divided equally for the coverture period, which they defined as the date of the marriage to the date the complaint for divorce was filed. The judgment of divorce was entered on May 21, 2003 incorporating the Agreement.
In April 2005, defendant moved to compel completion of the Qualified Domestic Relations Order (QDRO) for distribution of the savings plan. In July 2006, defendant moved to change the date of the coverture period from the date the complaint was filed to the date the judgment of divorce was entered, which would substantially alter her share of the plan proceeds. Plaintiff cross-moved to enforce the original Agreement. Although the parties requested oral argument, the trial judge decided the motion on the papers and, without explanation, changed the coverture period from the date the complaint was filed to the date the judgment of divorce was entered.
In the August 18, 2006 order, the trial court "ordered that Plaintiff's Exxon Mobil Savings (plan) shall be equally divided as of the date of the Judgment of Divorce and Defendant shall be entitled to growth at an interest rate of 6% per year, compounded monthly, until the date of final approval by the Plan Administrator." In the same order, the court properly denied defendant's request that the Marx calculation be used to divide the savings plan.
Marx v. Marx, 265 N.J. Super. 418 (Ch. Div. 1993), applies to defined benefit plans, not savings plans. Marx, however, did utilize the coverture fraction in distributing the defined benefit plan. The parties here agreed to use the Marx definition of the coverture period.
The delay in entering the QDRO appears to be the result of Exxon's failure to provide the necessary documentation to the forensic accountant so that he can prepare the QDRO. The forensic accountant tried unsuccessfully to obtain the necessary statements from Exxon. Indeed, plaintiff signed an authorization for the accountant to contact Exxon directly to request the statements. On June 2, 2005, the accountant sent a letter to Exxon enclosing the authorization and listing the specific statements required. Exxon apparently provided some documentation but not the statements requested. On September 22, 2005, the accountant again wrote to Exxon explaining the specific information required and referencing a telephone call in which an Exxon employee acknowledged that the statements were available but would have to be obtained from another source.
Based upon the record before us, the delay cannot be attributed to plaintiff.
We can readily understand defendant's chagrin at the delay in receiving her share of the Exxon Savings Plan. Defendant should be compensated for the delay, but the compensation should be in the form of interest earned on her share during the period of delay pursuant to the parties' Agreement, not by altering that Agreement. Dworkin v. Dworkin, 217 N.J. Super. 518, 523 (App. Div. 1987). The record indicates that the problem lies squarely with Exxon. Since the court lacks jurisdiction over Exxon and cannot, therefore, compel the corporation to respond, we can only suggest that the parties implead Exxon pursuant to R. 4:29-1(a) and make an application for an order to show cause why Exxon should not be compelled to produce the statements.
As to defendant's compensation for the delay, we remand the matter to the trial court for calculation of the interest on her share of the plan ...