January 19, 2011
STEPHANIE KIFFER, PLAINTIFF-RESPONDENT,
DAVID KIFFER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-921-08-X.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically December 16, 2010 -- Decided January 19, 2011
Before Judges Parrillo and Yannotti.
Defendant David Kiffer appeals from a post-judgment order entered by the Family Part on January 8, 2010, which denied defendant's motion to vacate a qualified domestic relations order (QDRO) and enter a revised QDRO. We affirm.
The parties were married on October 8, 1994. Plaintiff Stephanie Kiffer filed a complaint for divorce on January 28, 2008, and on December 3, 2008, the parties agreed to the terms of a property settlement agreement (PSA), which were placed on the record. During that proceeding, the attorneys for the parties addressed, among other things, the parties' respective interests in defendant's pension plan.
Plaintiff's attorney stated on the record that defendant had a pension plan as a result of his employment as a corrections officer with the State of New Jersey. Counsel stated:
Related to that [plan] there will be a QDRO.
Wife will get a coverture share. That coverture share will be reduced by one-half of the pension loan balance as of the date of the complaint. Husband will be responsible [for paying] off the pension loan without contribution from wife.
As to paid-in contributions to that pension plan, wife gets a coverture share. Husband shall provide wife with not less that 90 days written notice of his retirement intention.
The court entered a final judgment of divorce dated December 3, 2008, which dissolved the parties' marriage. The terms of the PSA were reduced to writing and incorporated in a supplemental final judgment of divorce (FJOD), which was filed on January 5, 2009. The FJOD stated in pertinent part that:
The parties shall equally fund the preparation of a QDRO to Plaintiff from Defendant of fifty (50%) percent of the coverture share related to and arising from Defendant's participation in his pension plan with the State of New Jersey where he is employed as a Prison Guard subject to that set forth here in paragraph 2 (c).
That due Plaintiff shall be reduced by half of the balance due on Defendant's Pension Loan as of January 28, 2008, half of $29,644.78. Defendant alone shall be responsible to pay back that Pension Loan without contribution from Plaintiff.
The QDRO shall include a term whereby wife is named irrevocable beneficiary of one-half of Defendant's paid-in Pension Contributions as of January 28, 2008 with its related growth/value decrease, if any, through to the time of distribution, if any. The QDRO shall include a term requiring Defendant to provide Plaintiff with ninety (90) days advance written notice of his proposed retirement.
In January 2009, plaintiff filed a motion in the trial court to enforce the FJOD and requested, among other things, that defendant be required to cooperate in the preparation of the QDRO. Defendant filed a cross-motion, alleging that there were certain "errors" in the FJOD. Defendant asserted that he had supplied all of the information required for preparation of the QDRO and did "not believe that anything more needs to be done."
On February 10, 2009, defendant's attorney wrote to Lois Fried (Fried), the individual retained to draft the QDRO, and stated that the QDRO was for fifty percent of the cash contributions made to the pension plan, less one-half of the amount of the pension loan due as of the date of the filing of plaintiff's complaint for divorce, which amount was $29,644.78.
On March 6, 2009, the trial court entered an order requiring the parties to "continue to cooperate in the preparation of the QDRO concerning defendant's pension." On March 18, 2009, the court filed the QDRO.
The QDRO stated, among other things, that plaintiff was entitled to receive a portion of the gross monthly benefits payable to defendant under the pension plan by reason of his retirement, which was to be calculated as 31.9 percent of the "marital portion" of defendant's gross monthly allowance. Plaintiff also was entitled to 31.9 percent of the "marital portion" of any cost of living or other retirement adjustments paid to defendant pursuant to the plan. The QDRO defined the term "marital portion" to mean defendant's: gross benefit at retirement multiplied by a fraction, the numerator of which is 157 months, the number of months of service earned and purchased by [defendant] under the Plan while married to [plaintiff] before January 28, 2008 and the denominator of which is the number of months of [defendant's] credited service at the time of his retirement.
The QDRO additionally provided that, in the event that defendant became eligible and withdrew his employee contributions to the plan, plaintiff would be paid the lesser of one hundred percent of the contribution balance or $41,411.03, "plus the portion of any interest paid equivalent to the percentage that the amount assigned herein represents to the initial withdrawal proceeds."
In April 2009, defendant filed a order to show cause, which the court denied as "non-emergent." Thereafter, defendant filed a motion in the trial court to enforce litigant's rights. Defendant sought, among other relief, an order requiring the filing of a revised QDRO.
Defendant argued that the QDRO did not conform to the parties' agreement concerning his pension plan, as stated on the record on December 3, 2008. The court entered an order dated May 29, 2009, which denied defendant's motion regarding the QDRO without prejudice. In the order, the court stated "[t]he terms set forth in the FJOD control."
Thereafter, plaintiff brought another motion to enforce certain provisions of the FJOD. Defendant responded with a cross-motion in which he again sought the issuance of a revised QDRO. On January 8, 2010, the court entered an order denying defendant's motion. In the order, the court stated:
As set forth in the May 29, 2009 Order, the terms of the parties' FJOD control. The FJOD provides that plaintiff is to receive 50% of the coverture share related to and arising from defendant's participation in his pension plan. This is consistent with the transcript of December 3, 2008 at page 7, lines 2 to 9. The transcript does go on to say that "as to paid in contributions to that pension plan, wife gets a coverture share." [Defendant] seems to argue that, despite the language that [plaintiff] is to get a coverture share of the pension, the parties really only agreed that she would get a coverture share of what he had paid-in to the pension. That interpretation would not be fair, equitable or reasonable.
Plaintiff was to receive a coverture share of the pension and the FJOD and the QDRO are, therefore, consistent.
Defendant filed a notice of appeal on February 3, 2010. Thereafter, the trial court filed a written amplification of its decision pursuant to Rule 2:5-1(b). The court commented that defendant's motion for entry of a revised QDRO was untimely because he never filed an appeal from the QDRO, which was filed on March 18, 2009. The court stated that to the extent defendant's motion might qualify as a Rule 4:50-1 motion for relief from the QDRO, defendant had not filed a brief in support of his motion nor had he presented any newly discovered evidence warranting such relief.
The court also stated that there was no basis for entry of a revised QDRO. The court wrote that, based upon the terms of the agreement placed on the record and the PSA thereafter filed with the court, it was clear that "the parties had agreed that plaintiff (Wife) was to receive a coverture share of defendant (Husband's) State pension," to be paid on retirement. The court additionally wrote that since defendant might be eligible to the return of his contributions to the pension plan before he retired, "the parties also provided for this possibility" by allowing plaintiff to "receive a coverture share of the paid-in contributions."
On appeal, defendant argues that: 1) he timely asserted remedies regarding the QDRO and there is no procedural bar to this appeal; and 2) the trial court erred by relying upon the language of the FJOD as opposed to the oral argument placed on the record on December 3, 2008. We have thoroughly reviewed the record and conclude that defendant's arguments are entirely without merit.
We turn first to defendant's argument that his appeal is timely. Rule 2:4-1(a) requires that appeals from final judgments or orders be taken within forty-five days of their entry. Rule 2:4-3(e) provides, however, that the time to appeal may be tolled "by the timely filing and service of a motion to the trial court for rehearing or to amend or make additional findings of fact pursuant to Rule 1:7-4 . . . or for rehearing or reconsideration seeking to alter or amend the judgment or order pursuant to Rule 4:49-2." A motion for reconsideration under Rule 4:49-2 must be filed within twenty days after service of the judgment or order.
In this case, the trial court entered the QDRO on March 18, 2009. In April 2009, defendant filed an order to show cause, which the court refused to consider on an emergent basis, and thereafter filed a motion seeking the issuance of a revised QDRO. The court denied the motion by order dated May 29, 2009. Defendant did not appeal from that order, nor did he seek further relief with regard to the QDRO until later in the year when he again sought the filing of a revised QDRO.
In our view, the time for filing an appeal from the QDRO of March 18, 2009, and the court's order of May 29, 2009, had run when defendant filed his notice of appeal on February 3, 2010. Nevertheless, plaintiff's last motion, which was decided by the January 8, 2010, order challenged in this appeal, could be viewed as a motion pursuant to Rule 4:50-1(f) for relief from the QDRO. Therefore, defendant's appeal from the January 8, 2010, order was timely filed.
We turn to the defendant's contention that the court should have granted him relief from the QDRO because it did not conform to the agreement of the parties that was placed on the record on December 3, 2008. Under Rule 4:50-1(f), the court may relieve a party from a final judgment or order for a reason, other than those otherwise set forth in the rule, that may justify "relief from the operation of the judgment or order."
The Supreme Court has explained that, "No categorization can be made of the situations which would warrant redress under [Rule 4:50-1(f)]." Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966). "[T]he very essence of [Rule 4:50-1(f)] is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice." Ibid.
A party's right to relief under Rule 4:50-1(f) depends on the totality of circumstances and ordinarily the correctness or error of the original judgment or order is irrelevant. In re Guardianship of J.N.H., 172 N.J. 440, 476 (2002). Therefore, the party seeking relief under the rule must show that the circumstances are exceptional and enforcement of the order would be unjust, oppressive or inequitable. Id. at 471.
In this case, defendant has not shown that there is anything exceptional about this dispute over the terms of the QDRO, or that enforcement of the QDRO would be in any way unjust, oppressive or inequitable. Indeed, while the correctness or incorrectness of the court's initial order is ordinarily not a relevant consideration to whether a party is entitled to relief under Rule 4:50-1(f), the QDRO entered here is entirely consistent with the relevant terms of the parties' agreement that were placed on the record.
As the transcript of the December 3, 2008, hearing indicates, the parties agreed that plaintiff would get a coverture share of defendant's pension. The parties also agreed that plaintiff would get a coverture share of defendant's paid-in pension contributions in the event that he were to become eligible for a return of those contributions. The parties' agreement on these points was clearly spelled out in the supplemental FJOD.
The trial court's findings are further supported by the parties' agreement that defendant would provide plaintiff with written notice of his intention to retire. If, as defendant argues, the parties only agreed that plaintiff would be entitled to a coverture share of any paid-in pension contributions, the agreement would merely have required that plaintiff receive notice of the return of those payments. Instead, the parties agreed that defendant would give plaintiff notice of his retirement, a term which clearly indicates that plaintiff would be entitled to a share of any pension benefits paid to defendant thereafter.
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