On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-190-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Baxter.
Plaintiff Joseph M. DeAngelis, Jr., appeals from the June 12, 2007, order of the Family Part. We affirm.
The parties were married on September 16, 1989, and one child, a boy, was born of the marriage in October 1990. In contemplation of divorce, the parties entered into a consent order on August 5, 2003, which addressed the issues of alimony, child support, and equitable distribution of their marital assets and debts. Among other matters, the order: 1) provided "[t]hat the [plaintiff's] pension will be subject to a [Qualified Domestic Relations Order (QDRO)]*fn1 and distributed in accordance with that Order; and the parties shall retain the services of an expert to prepare said [QDRO]"; and 2) set plaintiff's child support obligation at $115 per month.
On December 1, 2003, the parties were divorced, and the order of judgment incorporated the provisions of the August 5, 2003, order. For reasons that appear to lie, at least in part, at the feet of defendant or her attorney, the QDRO was not prepared and submitted to the trial court until twenty-one months later. On September 3, 2005, the trial court entered the QDRO, which created and recognized the existence of defendant's right, as plaintiff's former spouse, to receive 17% of plaintiff's monthly pension benefits from the United States Coast Guard. The order provided in pertinent part:
5. Assignment of Interest. The Member Assigns to the Former Spouse an interest in the Member's Disposable Retired pay. The Former Spouse shall receive payments at the same time the Member receives payments and payments shall terminate upon the death [of the] Member or the death of the Former Spouse. Former Spouse's entitlement shall be paid directly to her and shall be paid regardless of her marital status.
9. Recovery of Excess Amount. In the event that the Member is inadvertently paid any benefits that are assigned to the Former Spouse pursuant to the terms of this Order, the Member shall forthwith pay such amount so received directly to the Former Spouse within ten (10) days of receipt. Former Spouse agrees that any future overpayments to her are recoverable and subject to involuntary collection from her or from her estate.
Lastly, the QDRO provided that it was defendant's obligation to send a copy of the QDRO, together with other necessary supporting documents and information, to the United States Coast Guard.
On November 29, 2004, an order was entered changing the physical custody of the parties' son to plaintiff. Although plaintiff had requested that the trial court direct defendant to pay child support for their son, the order did not impose such an obligation on defendant. No appeal was taken from the order of November 29, 2004. On January 12, 2006, the Court of Common Pleas of Bucks County of Pennsylvania ordered defendant to pay child support for the parties' son, retroactive to November 14, 2005.
On June 23, 2006, defendant filed a motion seeking to amend the QDRO to include pension benefit payments retroactive to December 1, 2003, the date of divorce. Although plaintiff did not challenge defendant's right to receive her portion of his pension benefits retroactive to December 1, 2003, plaintiff requested an offset for child support from the time of the change of custody, November 29, 2004, to November 14, 2005, the retroactive date of the order fixing defendant's child support obligation. On July 21, 2006, an order was entered granting defendant's motion without offset. Again, no appeal was taken from that order.
On May 9, 2007, defendant filed a motion seeking an order: 1) to compel plaintiff to reimburse her "for pension payments he received without deduction required by the [QDRO]"; 2) to compel plaintiff to execute a note and mortgage for the amount due until payment is made; and 3) for counsel fees and costs. In support of the motion, defendant certified that: between December 2003 and December 2006, plaintiff had received $21,360.16 of her portion of plaintiff's military pension; plaintiff received $67,759.64 in June 2005 from the sale of their marital residence; and defendant continues to pay child support in the amount of $652 per month via a wage execution.
As before, plaintiff did not challenge defendant's right to receive that portion of his pension as determined by the QDRO. Nor did plaintiff deny that he had received defendant's portion of the pension benefit payments and had failed to turn them over to her, as asserted by defendant. However, in opposition to the motion and without filing a cross-motion for affirmative relief, plaintiff requested that the court: 1) provide him with an offset for child support that defendant did not pay between November 29, 2004, and November 14, 2005; 2) provide him with an offset for excess payments he paid against the mortgage on their marital residence until its sale, because of defendant's ...