On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FM-15-930-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Sapp-Peterson.
In this post-divorce matter, plaintiff, Norma Abel, appeals from an order of a Family Part judge interpreting a provision of the parties' property settlement agreement (PSA) concerning the equitable distribution of the defined benefit pension plan of defendant, Douglas Abel. The judge held that the PSA unambiguously provided that plaintiff was entitled only to a deferred distribution of an amount equal to one-half of $91,049.76. He denied plaintiff's right to a qualified domestic relations order (QDRO), framed in terms specified in Marx v. Marx, 265 N.J. Super. 418 (Ch. Div. 1993), to reflect a deferred distribution of the pension at time of defendant's retirement that would give plaintiff her equitable share of the coverture fraction*fn1 of the entire pension. Because we find the parties' intent as reflected in the PSA to be ambiguous with respect to the equitable distribution of this defined benefit plan, we remand for a hearing on that issue.
The record establishes that plaintiff and defendant were married on December 28, 1990. On August 31, 2006, the court entered a judgment of divorce incorporating a PSA that read in relevant part:
5.1 Pensions. The parties have the following retirement plans:
1. GPU (First Energy) Defined Benefit Pension valued by Troyan & Associates at $91,049.76 - marital portion
2. First Energy Corp Savings Plan -$212.160.80
* * * Wife shall be entitled to fifty (50%) percent of the marital portion of Husband's GPU Defined Benefit Pension and shall be named a survivor beneficiary. A Qualified Domestic Relations Order shall be prepared to effectuate this distribution by Troyan and the parties shall be equally responsible for the cost of the Qualified Domestic Relations Order.
On February 14, 2007, Troyan proposed a draft QDRO that directed distribution of defendant's pension benefits in accordance with the formula set forth in Marx, supra, 265 N.J. Super. at 428, which provides that the total accrued benefit is to be determined when the non-participant spouse is permitted to move his or her share of the benefit to pay status pursuant to plan requirements. At that point, the plan administrator determines the coverture fraction and multiplies the total accrued benefit by that fraction. The product is then divided in accordance with the percentages set forth in the PSA to establish the parties' equitable shares.
However, on that same date, defendant notified Troyan and plaintiff by letter that he objected to the draft QDRO, arguing that its use of the Marx formula did not conform to the terms of the PSA, which included a calculation of $91,049.76 for the marital portion of defendant's pension benefit. In a letter written after receipt of defendant's objection, Troyan advised the parties that it interpreted the PSA as requiring use of the Marx formula. However, if the parties intended otherwise, it could revise the QDRO to direct distribution of pension benefits based on a calculation of the marital portion of monthly benefit payments as $1,160.42 - the number utilized to derive the $91,049.76 figure appearing in the PSA.*fn2 The revised language set forth by Troyan included the statement: "The Alternate Payee shall be assigned $580.21 [one-half of the monthly benefit] per month of the Participant's benefit."
Following receipt of defendant's letter, on April 13, 2007, plaintiff filed a post-judgment motion for an order requiring defendant to sign the QDRO as initially drafted. At oral argument, plaintiff argued that the $91,049.76 figure was established in case the parties sought to offset defendant's pension against other sums, but they had not done so. Plaintiff argued further that a defined benefit pension could not legally be distributed in the manner that defendant proposed. Defendant, in contrast, argued that the PSA, drafted by plaintiff's attorney, clearly provided for an equal division of the specified sum, ...