On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-0814-09. Arthur E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 21, 2011
Before Judges Cuff and Waugh.
Defendant Audrey Mammone appeals from the January 25, 2011 order of the Family Part denying her application for a determination of her right to survivor benefits under her former husband's pension. We reverse and remand for further proceedings consistent with this opinion.
The relevant facts are quickly stated. The parties were married in 1986 and divorced on September 16, 2009. They were able to negotiate virtually all of the issues related to the divorce, and their agreement was embodied in a property settlement agreement (PSA) annexed to the judgment of divorce.
The PSA provided for a qualified domestic relations order (QDRO) to divide equally between the parties the coverture share of plaintiff Richard B. Mammone's interest in his New Jersey Public Employee Retirement System (PERS) pension. The PSA further required the QDRO to "provide that Wife as the alternate payee shall be entitled to all applicable cost of living adjustments and survivor benefits." The PSA contained similar provisions with respect to Audrey's pension.*fn1
The parties were not, however, able to agree on who should bear the cost of an election of survivor benefits under the other spouse's pension plan. The PSA states that "there is a dispute as to whether or not any cost associated with such election should be borne by the party making the same. That issue is specifically preserved, to be submitted to the Court for final determination."
The parties thereafter submitted briefs so that the outstanding issue could be resolved by the Family Part judge. On January 25, 2011, the judge issued a written opinion and order, primarily concluding that Audrey was not entitled to any further relief because the survivor benefits "ceased to exist at the divorce of the parties" and were "not available for post-judgment disposition." This appeal followed an unsuccessful motion for reconsideration.
Our review of the record and the applicable law convinces us that the trial judge was in error. The parties clearly agreed between themselves that either could seek survivor benefits and that the right to do so would be embodied in the QDRO. The only issue as to which they could not agree was whether the electing spouse, in this case Audrey, or the retiree spouse, Richard, should bear the cost that flows from a retiree's election, whether voluntary or resulting from a judgment of divorce, to forego receipt of the full pension payment so that a beneficiary can receive survivor benefits after the retiree dies.
Although the beneficiary is typically the retiree's surviving spouse, the PERS document contained in the record does not reflect such a requirement. See Rienzi v. Rienzi, 300 N.J. Super. 355 (App. Div. 1997) (addressing a situation in which the former husband had named his fiancee as the beneficiary and the former wife sought to reverse that election). We also reject Richard's argument that the issue is preempted by ERISA. See Savage-Keough v. Keough, 373 N.J. Super. 198, 209 (App. Div. 2004).
The issue before the trial judge was basically whether Richard should bear the loss of pension income occasioned by Audrey's selection of a specific benefit, whether Audrey should be required to make him whole, or whether there should be some combination of the two. The record contained several estimates of the costs involved, which can apparently be determined on the basis of expert opinion. The decision of whether and how to require Audrey to bear the cost resulting from her selection must be based upon the law concerning equitable distribution viewed in light of the nature of the benefits sought by Audrey, the resulting cost, the financial position of the parties, and other relevant facts brought to the attention of the court. A plenary hearing, possibly including expert testimony, might be necessary if there are disputed facts.
The trial judge's opinion states that he could "conceive of no circumstance" under which the cost would be Richard's responsibility. While that result might be sustainable if based upon a full record with appropriate findings of fact and conclusions of law, it cannot be sustained on this appeal.
Consequently, we reverse the order on appeal and remand to the Family Part for further proceedings consistent with this opinion. Because the judge appears to have stated his position with respect to the ultimate issue without the benefit of the required ...