On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-769-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 16, 2011
Before Judges Axelrad and R. B. Coleman.
In this post-judgment matrimonial matter, defendant James Cancialosi (husband) appeals from a December 11, 2009 order of the Family Part denying his cross-motion to vacate the parties' Property Settlement Agreement (PSA) and a February 5, 2010 order enforcing the PSA by the entry of a final Qualified Domestic Relations Order (QDRO).*fn1 Plaintiff (wife) cross-appeals from the December 11, 2009 order, which failed to address her request for counsel fees. We affirm.
Both parties provide us with a litany of facts and procedural history that is not relevant to this appeal. The parties were married in l969. Wife filed a complaint for divorce in September 2005. On July 27, 2006, a final judgment of divorce was entered that incorporated a detailed PSA of the same date. The PSA addressed medical insurance and expenses, taxes, spousal support, and distribution of husband's pension and the balance of the parties' marital assets. Both parties were represented by counsel.
In November 2009, wife filed a motion for enforcement of litigant's rights to finalize equitable distribution of the parties' investment and retirement accounts pursuant to the PSA. Wife expressed a particular concern about husband's failure to execute the QDRO that had been sent to him to effectuate her fifty percent interest in the coverture portion of his pension and protect her right to an "Option C" survivor benefits annuity, in view of husband's planned retirement as a teacher in 2010. She also requested counsel fees. Husband cross-moved to vacate the PSA on the grounds of fraud pursuant to Rule 4:50-1(c), claiming that at the time of the divorce wife failed to disclose, or misrepresented, the amount in numerous bank accounts and dissipated assets in anticipation of the divorce. He also challenged various aspects of the PSA, such as the length of alimony, arguing, for example, that "it was understood at the time of divorce that alimony would stop at the time that the pension kicked in." Wife filed a lengthy reply certification.
Following oral argument on December 11, 2009, Judge Thomas P. Zampino denied husband's motion in its entirety. He explained:
We should understand that [the] law requires discovery before we do a property settlement agreement, before we get divorced, not three and a half years later. Everything that I've heard from your lawyer surrounding 2000 and 2002 was easily discoverable then and in fact they weren't hidden or fraudulently concealed.
They were just transformed into other entities that included the children or another family member in regard. And it was either known [to] you then or you were aware of them, or they became known to you. But even though you started some discussions with your present attorney in March of this year, it's not until they bring an actual motion do you bring [a] cross[-]motion.
The rule which is [4:50-l] actually says within a reasonable time. It even poses a year. This Court finds this is not a reasonable time. There's absolutely no basis for your award.
[You've] created a perception in your mind . . . that you have some entitlement beyond what this agreement says. And you don't. . . .
As much as now you feel I've offended you, because you're looking at me forlornly, but this is not a personal issue. It's my interpretation of your agreement. And the law as the facts fit into it. It has nothing to do with you as a person. So, I want you to understand that clearly.
The judge pointed out, for example, the lack of a provision terminating husband's alimony obligation upon his retirement, instead terminating it upon wife's remarriage, death or cohabitation. The judge denied wife's cross-motion, finding husband was not in violation of litigant's rights and he was going to sign the QDRO before he left court. He also ordered enforcement of certain other provisions of the PSA pertaining to ...