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Branca v. Branca

September 17, 2009

ALBERT BRANCA, PLAINTIFF-APPELLANT,
v.
FRANCES ANN BRANCA, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-725-90.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 30, 2009

Before Judges R. B. Coleman, Sabatino and Simonelli.

Plaintiff Albert Branca appeals from an order and judgment of the Family Part, filed April 16, 2008,*fn1 awarding defendant Frances Ann Branca $30,657.48, "representing the amount due her as Alternate Payee of plaintiff's pension from the date of the receipt of his retirement check to and including October 1, 2006[.]" Based on our review of the record, the arguments of the parties and applicable law, we affirm.

The Brancas were married on August 29, 1970. One child was born of the marriage. On December 4, 1990, Judge Birger M. Sween entered a Dual Judgment of Divorce, dissolving the marriage and incorporating the parties' Inter-spousal Agreement dated October 22, 1990. Paragraph 50 of the Inter-spousal Agreement made specific reference to plaintiff's pension benefits from his employer, Public Service Electric and Gas Company (PSE&G). Pursuant to that Agreement, it was agreed that defendant was to receive fifty percent of the husband's pension, and that the court would enter a Qualified Domestic Relations Order (QDRO). The parties further agreed that the attorney for the husband (plaintiff) was to prepare the QDRO in accordance with the husband's employer's requirements. The Inter-spousal Agreement also provided that "[s]hould that Order, for any reason, not qualify as a QDRO, the parties agree to execute and consent to the form and entry of any additional order which may be necessary to constitute the said Order as a QDRO under the Retirement Equity Act of 1984, or as the same may be amended."

Despite the agreements and the efforts of the parties and their attorneys, the QDRO was not filed with the court until August 11, 2006. In the meantime, each party faults the other for the delay. To provide an adequate perspective, we recount in substantial detail the communications between the parties with respect to the efforts to file a proper QDRO.

Having noted that no QDRO had been filed, defendant's attorney wrote a letter to plaintiff's attorney on July 13, 1998, requesting prompt submission of a QDRO pursuant to the parties' Dual Judgment of Divorce. Thereafter, on October 13 and 28, 1998 and on July 6 and August 23, 1999, defendant's attorney wrote additional letters requesting compliance with the QDRO provision, to no avail. In a letter dated October 6, 1999, defendant's attorney advised plaintiff's attorney that she had learned during a conversation with Michael Freda, Plan Administrator of PSE&G, that a proposed QDRO submitted by plaintiff did not meet PSE&G's requirements. Expressing her client's fear that plaintiff might leave PSE&G, foreclosing defendant from her entitlement to fifty percent of the pension benefit, defendant's attorney requested that the QDRO be modified immediately and resubmitted to PSE&G.

Later, on January 7 and March 21, 2000, defendant's attorney wrote additional letters to plaintiff's attorney to inquire about the status of the QDRO, whereupon plaintiff's attorney, by letter dated April 13, 2000, submitted to defendant copies of a QDRO, which had been accepted by PSE&G. Defendant did not respond to that submission until June 16, 2000. Defendant's attorney then advised PSE&G and counsel for plaintiff that the QDRO misstated defendant's street address and did not accurately reflect her right to her share regardless of whether she predeceased the commencement of payment.

By letter dated June 22, 2000, Freda informed the parties he could not change the text of an order or draft an order once it had been accepted. He therefore suggested that the attorneys for the interested parties decide on the contents and submit a new draft order for his review. He added that the Plan would take no further action in the meantime. Although defendant's attorney wrote immediately to plaintiff's attorney regarding Freda's letter, nothing substantive was done until defendant applied to the court, upon notice to plaintiff, for an order for specific enforcement of the Dual Judgment of Divorce.

On April 27, 2001, Judge Harold C. Hollenbeck ordered plaintiff's attorney to correct the QDRO and "to attend to hav[e] [the] same entered within thirty (30) days of the within Order." The judge awarded interest on defendant's share at six percent per year from October 1990 until the QDRO was entered. Plaintiff submitted a copy of the QDRO for defendant's review and submission to PSE&G for approval on June 1, 2001.

On November 2, 2001, defendant's attorney informed plaintiff's attorney that defendant had approved the QDRO and requested that plaintiff submit it to the court for entry. Eventually, on December 31, 2001, counsel for plaintiff sent four copies of the QDRO to defendant's attorney for review and execution, asking that the form of QDRO be executed and returned for submission to the court for filing. Defendant claims she never received the QDRO at that time.

Notably, on November 11, 2002, plaintiff's attorney wrote to defendant's attorney alleging he had sent four prior letters on the subject. That letter, which we quote in full, purported to put defendant on notice that any penalties or expenses associated with the finalization of the QDRO would be borne by defendant:

With regard to the above captioned matter, I am writing what is the fifth and final communication to you to encourage you to resolve the outstanding issue of the Qualified Domestic Relation Order which will provide to your client, Frances Branca, her share of Mr. Branca's pension with PSE&G. The last two communications were dated June 1, 2001 and December 31, 2001. ...


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