On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-50-94E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Newman.
Defendant Kathleen G. Cully appeals from an order for DeAnne DeFuccio, Esq., to draft a Qualified Domestic Relations Order (QDRO) providing plaintiff Patrick C. Cully with a separate interest for defendant's pension with Citigroup Pension Plan (the plan), a defined benefit plan, and its denial of both parties' applications for counsel fees. We now affirm.
The factual background may be summarized as follows. A dual judgment of divorce for the parties was entered on December 12, 1995. This judgment was partially vacated on March 28, 1996, and the parties entered into a Property Settlement Agreement (PSA) on June 30, 1998, which was then incorporated into an amended judgment of divorce, on August 18, 1998.
The pertinent portion of the PSA reads:
7. Husband's Share of Wife's Pension from Citicorp.*fn1 The Husband will be entitled to receive the value of the Wife's pension from Citicorp. The Wife represents that she has not invaded, converted, encumbered or in any way diminished the value of said pension, nor will she in the future. She will provide evidence on a yearly basis that the pension remains untouched and unencumbered until she retires and begins to receive payments under the pension plan. The Husband will be entitled to one half of said pension and may elect such payment and terms as the pension plan permits. Each party will pay one-half of the fee of a qualified expert for preparing the related qualified domestic relations order. In the event that there are no options available that would permit early withdrawal, the Husband will receive one-half of each payment due to the Wife until his death.
Over the next seven years, plaintiff submitted at least one QDRO for defendant's approval and signature. Defendant drafted several QDROs for plaintiff's signature and approval, which plaintiff declined to approve.
On October 24, 2005, plaintiff filed a motion to effectuate his proposed QDRO, which had been approved by the plan administrator.
Defendant filed an answering certification of Judith A. Deer, Esq., on November 28, 2005, and herself, on January 4, 2006, seeking the entry of her proposed QDRO. The certifications focused on two provisions in plaintiff's QDRO:
(1) that plaintiff sought a separate interest in defendant's pension, instead of the shared interest that defendant and Ms. Deer interpreted the PSA to require, and (2) that the language of the survivorship benefits section was ambiguous. Defendant also sought reimbursement for half of her counsel fees from plaintiff, if the court were to find her responsible for plaintiff's counsel fees.
On January 12, 2006, the parties appeared before the now-retired Judge Richard C. Camp. Plaintiff's proposed QDRO used a separate interest approach, which would separate defendant's pension account into separate components, one for defendant as the participant and one for plaintiff as the alternate payee.
Defendant's proposed QDRO applied a shared interest approach, which would simply provide plaintiff with half of each payment that defendant would receive and a reversionary interest to defendant if she survived plaintiff.
The trial court initially was inclined to sign plaintiff's QDRO and award him attorneys' fees, but it then suggested that defendant could elect to have a QDRO expert, Ms. DeFuccio, review both parties' QDROs and decide which QDRO is acceptable. The parties would split the expert's fee, and the loser would reimburse the other party for counsel's fees. The parties adopted the trial court's suggestion and agreed to be bound by Ms. DeFuccio's determination.
On February 15, 2006, the plan approved a QDRO submitted by Ms. Deer on behalf of defendant. On March 11, 2005, it likewise approved a QDRO that was submitted on behalf of plaintiff.
On March 16, 2006, Ms. DeFuccio reported to the trial court with a letter analyzing the parties' QDROs and the PSA. Ms. DeFuccio found that the PSA was not "crystal clear" but that it was "clear" that under the PSA plaintiff "was to receive payments until his death." She stated that the parties intended for plaintiff to receive a separate interest under the QDRO because it would pay benefits for his lifetime. She also considered the language of the PSA that entitled plaintiff to "'an early withdrawal,' if it was available under the plan." Based on this language, Ms. DeFuccio found "it was the parties' intent that [plaintiff] would receive his full share with no reversion to [defendant]."
Ms. DeFuccio indicated that she had received the plan's approval for a QDRO drafted by plaintiff, and she presumed this QDRO was, in fact, the one plaintiff was proposing. Ms. DeFuccio noted that this QDRO, "though not well drafted, could be entered," conditioned by some issues requiring interpretation by the plan. Ms. DeFuccio stated that she would have reworded two provisions. First, she understood plaintiff was entitled to "a pure 50% share of the Plan as all of [Wife's] contributions were made during the marriage." Ms. DeFuccio would have omitted "as of August 10, 1998" in plaintiff's QDRO provision that provided plaintiff with "an amount equal to Fifty Percent (50%) of the Participant's accrued benefit as of August 10, 1998." Second, Ms. DeFuccio noted that the wording of plaintiff's QDRO provision regarding his survivor benefits was unclear. She wrote "Husband should receive survivor benefits in accordance with the marital portion as defined in paragraph 2a of the QDRO."
To protect the parties, Ms. DeFuccio suggested that the QDRO be revised, "providing Husband with a separate interest QDRO and survivor benefits in accordance with the marital portion with no reversion to [Wife]." Ms. DeFuccio offered to participate in preparing the QDRO.
The court entered an order on April 11, 2006. In its order, the court directed that Ms. DeFuccio draft "a new QDRO providing plaintiff with a separate interest QDRO for 50 percent of the entire Plan and with survivor benefits in accordance with the marital portion with no reversion to the Defendant," that both parties would share the costs of preparation for the new QDRO, that the new QDRO be submitted to the court no ...