On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-298-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Alvarez.
Plaintiff Jeanne V. Leins appeals from a June 20, 2008 order, which described the formula to be employed in a military clarifying order (MCO), the military version of a qualified domestic relations order (QDRO). For the following reasons, we reverse and remand.
Plaintiff and defendant, Kenneth J. Leins, married on February 6, 1982. At the time, defendant was not accruing credits towards a military pension resulting from his service as a member of the Army National Guard. According to representations made by his attorney when the divorce settlement was placed on the record, defendant believed that the start date for pension benefits fell in 1987 or 1989, years after the date of the marriage. The parties separated on October 31, 1997, and divorced on June 26, 2002. After serving at various times as an active duty and reserve member, defendant retired as a reservist on an extended tour of active duty in August 2006. The parties had anticipated that he would retire in reservist status, not as an active duty member.
The final judgment of divorce incorporated the parties' stipulation of settlement, which stated:
A Qualified Domestic Relations Order (QDRO) for allocation to the Wife of forty percent (40%) of the marital coverture portion of the Husband's military pension shall be prepared by Wife's attorney. The marital coverture period shall be calculated from the date of the parties' marriage on February 6, 1982 to the date of separation on October 31, 1997. The Husband shall retain survivorship rights and benefits.
This seemingly clear language has spawned several post-judgment motions as well as this appeal.
Plaintiff filed a motion to enforce litigant's rights on November 17, 2005, to enforce the pension provision of the judgment of divorce and obtained an order directing that an MCO be entered to effectuate the division of the pension. On April 20, 2006, an MCO was filed reciting the formula for distribution based on "reserve points," the methodology employed where credits accumulate towards a military pension when a retiree is not on active duty, as it was anticipated that defendant would retire as a reservist. At the time of his retirement, however, since defendant was on active duty, a different formula was required. The military therefore rejected the order.
Additional litigation followed. Another order issued on December 22, 2006, this time directing counsel to ascertain from the military the appropriate language and formula to convey to plaintiff 40% of the pension accrued during the coverture period, as called for by the divorce settlement, given defendant's retirement while on active duty. On August 3, 2007, as a result of yet another motion, the court determined that because defendant had retired while on active duty status, the pension should be calculated through a "years of service" formula.
Plaintiff concurred with the court's definition as set forth in that order. Thereafter, however, by order dated June 20, 2008, the Family Court judge restated his August 3, 2007 decision. He rejected the language that plaintiff proposed and, in fact, appeared to reverse his earlier ruling as to the appropriate language. He entered an order requiring the parties to calculate the pension using "credible service days," as opposed to "creditable years of service." He also found that plaintiff was entitled to 40% of defendant's years of service, fixing that time as only 1,401.2 days on the mistaken assumption that defendant had accumulated only 3,503 "credible service days" during the marital coverture period. That number was then to be divided by defendant's total years of credible service, twenty-two years, two months, and twenty-nine days.
The distinction between using "years of service" and "credible service days" as the formula's numerator resulted in plaintiff losing a significant share of the pension. In fact, she claims that the mathematical consequence of the formula employed by the Family Court judge was that her entitlement to ...