On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FM-16-1714-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Chambers.
The parties were married on December 29, 1984; two children were born of the marriage; and on April 28, 2003, the parties were divorced. The two aspects of the Judgment of Divorce involved in this appeal deal with the marital home and the Qualified Domestic Relations Orders (QDRO).
The Judgment of Divorce allowed plaintiff to live in the marital home with the parties' two children until their son was a senior in high school. Plaintiff was responsible for the mortgage payments and other expenses associated with the marital home. The agreement also contained a provision allowing plaintiff to refinance the marital home. The house was to be listed for sale in April of the son's senior year in high school, but the closing of title could not take place before the first week of July in that year, after the son's graduation. The net proceeds from the sale of the marital home were to be divided equally between the parties.
In the alternative, the Judgment of Divorce permitted plaintiff to buy out defendant's interest in the marital home at fifty percent of its fair market value less the balance due on the mortgages. If plaintiff desired to exercise this option, she was required to obtain an appraisal of the marital home. If defendant disagreed with that appraisal, he could obtain his own appraisal. In the event the parties continued to dispute the value of the marital home, the Judgment of Divorce provided that "either party shall have the right to apply to a Court of competent jurisdiction to resolve this issue."
The Judgment of Divorce also provided that defendant's 401(k) plan acquired during coverture was to be divided equally between the parties by way of rollover or QDRO. In addition, the pensions acquired by each of the parties during coverture were to be divided equally by way of QDROs.
The son's senior year in high school ended in June 2007. As a result, under the terms of the Judgment of Divorce, the house was to be listed for sale in April 2007. Defense counsel wrote to plaintiff's counsel on March 29, 2007, April 19, 2007, and June 12, 2007, requesting that the marital house be listed for sale. In response to these letters, plaintiff's counsel wrote defense counsel on June 14, 2007, that plaintiff "would like to buy out" defendant's interest in the marital home, and stated that "before she can finalize this, I need to know what the value of Mr. Rendine's 401(k) plan was at the time the Divorce Complaint was filed." On July 12, 2007, defense counsel again wrote plaintiff's counsel, pressing for sale of the marital home and indicating that a motion would be filed if plaintiff did not sign a listing agreement. In response, plaintiff's counsel reiterated that plaintiff was interested in purchasing defendant's interest in the marital home but she needed missing pages from defendant's 401 Incentive Savings Plan Statement to finalize this.
In August 2007, defendant brought a motion seeking to compel the sale of the marital home, among other relief. While the motion was pending, plaintiff's counsel wrote in a letter dated September 7, 2007, that plaintiff had elected to buy out defendant's interest in the marital home, and enclosed an appraisal indicating that the fair market value of the property as of August 23, 2007, was $570,000. Plaintiff's counsel also asked if defendant would "agree to a credit against his interest in the former marital home in an amount equal to the value of Ms. Rendine's interest in his retirement accounts."
Plaintiff also filed a cross-motion seeking, among other relief, to compel defendant to convey his interest in the marital home to her based on the appraised value fixed by her appraiser and to credit against defendant's interest in the marital home an amount equal to the value of plaintiff's interest in defendant's pension and 401(k) plan. Notably, the Judgment of Divorce does not provide for such an offset. In his responding papers, defendant objected to this offset, noting the difference in liquidity between the proceeds from the sale of the marital home and the pension and 401(k) plan.
In her cross-motion, plaintiff also alleged that defendant failed to cooperate with the preparation of the QDRO, without specifying what he had failed to do. In response, defendant said that he had filled out the form requested by plaintiff's counsel to complete the QDRO for the pension and 401(k) plan. His responding papers also indicate that the delay in preparing the QDRO after the divorce was due to plaintiff's inaction. Two years after the divorce and before the need to sell the marital home arose, in a letter to plaintiff dated March 9, 2005, defense counsel wrote that plaintiff had failed for two years to take steps to have the QDROs prepared. He set forth his understanding that plaintiff's counsel was going to prepare the QDRO, but since this had still not been accomplished, he offered to undertake the task. On May 31, 2005, defendant also wrote to plaintiff indicating that he and his attorney had communicated with her to begin the procedure to distribute the pension and QDRO and that she has been unresponsive.*fn1
The trial court issued an order on November 2, 2007, holding that plaintiff was in violation of litigant's rights, requiring that the marital home be immediately sold or in the alternative, allowing plaintiff to buy out defendant's interest in the marital home pursuant to the provisions of the Judgment of Divorce. Defendant was permitted to have the property appraised at his expense and if the parties could not thereafter agree upon the property's fair market value, then "the court shall appoint an appraiser and both parties ...