On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-09752-89.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Ashrafi.
Defendant Peter D'Elia appeals from an order of the Family Part dated July 13, 2010, denying his motion for sanctions and other relief arising out of a mishandled Qualified Domestic Relations Order (QDRO) after his divorce, and also an August 27, 2010 order denying his motion for reconsideration. We affirm.
The parties were married on September 27, 1980. Plaintiff Linda D'Elia
filed a complaint for divorce on October 27, 1988. Peter*fn1
filed a counterclaim, and subsequently, the court entered a
Dual Judgment of Divorce on January 16, 1990, which incorporated the
parties' settlement agreement. As part of equitable distribution of
marital property, the settlement agreement provided for equal
splitting of the pension benefits of each party that had accumulated
during the ninety-seven months of the marriage.
Each party's attorney prepared a QDRO*fn2 for the purpose of directing the pension plan administrator of the other party to preserve a portion of the pension benefits for distribution to the divorced spouse. The parties signed their consent to the two QDROs and the court issued the orders on January 16, 1990. Linda's attorney served her QDRO upon the pension administrator at Peter's place of employment, the Cozzoli Machine Company. The record does not show, however, that Peter's attorney served his QDRO upon the pension plan administrator at Linda's place of employment, Summit Federal Savings & Loan Association (Summit Bank).
In October 1991, Linda "retired" at the age of forty-one after nineteen years of employment with Summit Bank. She planned to move to Florida and remarry. She inquired about her pension benefits and was given the option of deferring her pension until her normal retirement age in 2015, at which time she would receive $1,192.22 per month, or taking a lump sum payment immediately of $32,361.62. She chose the latter option. She deposited the payment into an Individual Retirement Account (IRA) to avoid adverse tax consequences. Between 1992 and 1998, Linda withdrew funds from her IRA and paid all penalties and taxes due because of the premature withdrawals.
In 2005, Peter consulted with his accountant for retirement planning and made inquiry of Summit Bank regarding his share of benefits from Linda's pension plan. In October 2005, Summit Bank responded that it no longer held any retirement assets of Linda, the settlement on the account having occurred in February 1992. Peter filed a motion before the Family Part to enforce his rights as a litigant. Linda did not respond to the motion, and the court entered an order on April 12, 2006, requiring that Linda provide information to Peter pertaining to her Summit Bank pension account.
When Linda received a copy of the court's order, she contacted Peter's attorney, initially stating in a handwritten note that she did not understand what was expected of her. Through further correspondence with Peter's attorney, Linda provided truthful information that she had received a payment of about $32,000 and rolled it over into an IRA and then withdrawn some of the money for her living expenses. She also said she had assumed Peter's share of her pension account was preserved or taken by him. She offered the balance of her IRA account, which she estimated at $8,000, as sufficient to cover Peter's entitlement to her pension benefits. Peter did not accept Linda's offer.
In 2006 and 2007, Peter's attorney received documents from Summit Bank evidencing Linda's pension options at the time of her retirement in 1991, her receipt of the lump sum payment, and her dates of employment. Peter filed another motion in the Family Part to enforce litigant's rights. Again, Linda did not file opposition. The court entered an order on September 7, 2007, directing Linda to comply with the April 12, 2006 order and restraining her from transferring her real or personal property, except for ordinary expenses, until all obligations owed to Peter were paid.
Upon receiving the September 2007 order, Linda consulted an attorney. Her attorney contacted Peter's attorney, provided copies of Linda's IRA account statements, and again offered to settle the matter by transferring to Peter the balance of the IRA account, which as of June 30, 2007, was $8,978.16. Linda's attorney received no response to the offer.
Two-and-a-half years later, in March 2010, Peter filed yet another motion to enforce litigant's rights. He sought an order sanctioning Linda $100 per day for allegedly failing to comply with the 2006 and 2007 orders and directing her to hire a pension professional at her sole expense to determine the amount due to Peter as his share of her pension benefits. Linda filed opposition and a cross-motion. In addition to explaining the history of the relevant events as described in this opinion, Linda offered again to provide the current balance of her IRA account, $9,333.18, in satisfaction of Peter's rights to her Summit Bank pension.
The Family Part heard argument on the motions on May 27, 2010. Counsel discussed at the argument what Peter's entitlement would have been in 1992 to a lump sum payment from Linda's pension account. The "coverture fraction" for determining the amount of the pension accumulated during the marriage would have used the 97 months of the marriage as the numerator and the 228 months that Linda was employed at Summit Bank as the denominator. The fraction equaled 42.5%. Since Peter was entitled to half the product of the lump sum payment of $32,362 multiplied by the coverture fraction, his share of that payment would have been $6,877. Peter's attorney acknowledged at the argument that the amount involved was too small to justify hiring experts to prepare reports and to testify at a court hearing. The judge of the Family Part instructed counsel to provide in writing their own calculations of ...