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Ejiofor v. Ejiofor

October 22, 2010

LUCIA EJIOFOR, PLAINTIFF-APPELLANT,
v.
CARLOS EJIOFOR, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1513-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2010

Before Judges Gilroy and Ashrafi.

Plaintiff Lucia Ejiofor appeals from a post-judgment order dated September 25, 2009, directing that she pay $51,876.88 to defendant Carlos Ejiofor as his share of her retirement accounts equitably distributed in their judgment of divorce.*fn1 We reverse and remand to the Family Part to determine the current value of Carlos's share of Lucia's retirement accounts.

The parties were married in 1989. They separated in December 2004 and were divorced in April 2007. Their final judgment of divorce incorporated an oral property-settlement agreement placed on the record in open court on March 15, 2007. We have not been provided a transcript of the proceedings of that date, but there is no dispute that the parties agreed to share equally their retirement and pension accounts. Paragraph 11 of the Dual Judgment of Divorce, dated April 12, 2007, stated:

Pension Retirement Accounts: All Account(s) are to be evaluated as of 12/15/04, or as close to that date as possible. The parties agree if any loan has been taken out against any plan, that 12/15/07 is the value for the 50/50 distribution. The defendant acknowledges that he surrendered his 401k plan and he will give that surrender value in documentation to the other side as a credit towards any payment by the plaintiff from her plan(s). Primerica Account, as of statement date of 12/15/04 will be divided on a 50/50 basis between the parties.

Shortly after the judgment of divorce was entered, disputes arose about other equitable distribution provisions of the parties' agreement, including the equity available in real property that was subject to distribution. The Family Part held a plenary hearing on June 19, 2008, and issued a written decision dated September 30, 2008, ruling on a multitude of economic issues in dispute. The court's decision was embodied in an order dated October 21, 2008. Relevant to the appeal before us, paragraph 9 of the court's order stated:

The parties will share the cost on an equal basis (50/50 basis) of an expert appraiser to value any of the Pension/Retirement accounts, as well as equally (50/50 basis) sharing the cost of the preparation of any QDRO's (Qualified Domestic Relations Order).

The distribution of the defendant's share will be from the AIG VALIC account in the plaintiff's name after receiving a credit in the amount of the defendant's surrendered 401K plan.

In August 2009, Carlos filed a motion requesting that the court set his share of Lucia's retirement accounts at $51,876.88 and to order that a QDRO be prepared directing payment of that amount to him from Lucia's AIG VALIC account. Lucia filed a cross-motion in opposition. The motions were heard by a different Family Part judge from the one that had entered the October 21, 2008 order. Rejecting Lucia's opposition, the judge entered the September 25, 2009 order stating in relevant part:

Defendant's request for an Order directing Plaintiff to pay $51,876.88 as the value of the QDRO is GRANTED. The FJOD [final judgment of divorce] provides all Pension Retirement Accounts "are to be evaluated as of December 15, 2004, or as close to that date as possible." Defendant has provided sufficient proof establishing the amount available in plaintiff's retirement account as of the above date was $104,875.88 for payment of Pension funds pursuant to equitable distribution.

Lucia filed a notice of appeal from that provision of the order. Carlos has not filed a brief responding to Lucia's appeal but has sent a letter stating that he relies on the motion record before the Family Part.

Our standard of review from a decision of the Family Part equitably distributing marital assets is generally limited to determining whether the order was an abuse of the discretion entrusted to the judge. See La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001). We must affirm the Family Part's ruling as long as the court "could reasonably have reached [the] result from the evidence presented, and the award is not ...


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