On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-4209-74.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 21, 2011 -
Before Judges Waugh and St. John.
Defendant Alexander Kermendy appeals from three orders of the Family Part granting the application of plaintiff Joanne Reeves, his former wife, for execution and filing of qualified domestic relations orders (QDROs) to implement the provisions of their final judgment of divorce (JOD). We vacate one of the orders on appeal and remand for further proceedings consistent with this opinion.
We discern the following facts and procedural history from the record on appeal.
Reeves and Kermendy were married in 1972. They had a son, born in 1973. During their marriage, Kermendy was employed as an iron worker and participated in the Iron Workers Union's annuity and pension plans.
Reeves filed a complaint for divorce in 1974. The JOD setting forth the terms of the parties' oral property settlement agreement (PSA) was filed in 1975. Paragraph F of the JOD provided that Reeves shall be entitled to receive one-half of all contributions made by [Kermendy], his employer, or the Iron Workers Union to his pension and annuity plan, from October 8, 1972 until April 16, 1975. This Judgment shall serve as [Kermendy's] express authorization for [Reeves'] attorney to communicate with the Iron Workers Union or its agents who administer the funds to obtain [an] accounting of aforesaid contributions in [Kermendy's] account during the dates set forth herein. Upon receiving this information, [Reeves] shall be granted a lien against the annuity or retirement plan for one-half of said contributions. [Reeves] shall be entitled to these funds when [Kermendy] either draws any funds from the plan or has the right to withdraw any funds, whichever event occurs first.
Although Kermendy retired in July 2000, Reeves did not contact the administrator of the two plans to obtain an accounting of Kermendy's contributions during the applicable period until June 2010. Reeves asserts that the delay resulted from the fact that she did not learn that Kermendy had retired until that time. In July 2010, the administrator informed Reeves that "Kermendy's annuity contributions from October 8, 1972 through April 16, 1975 were $4,014.57. During this time Mr. Kermendy also earned 2.5 years of pension credit."*fn1
On March 16, 2011, Reeves filed a post judgment motion seeking the entry of two QDROs regarding Kermendy's pension and annuity plans. The pension plan QDRO required the plan administrator to pay "4.30% of [Kermendy's] total benefit" to Reeves until the earlier of the death of Reeves or Kermendy. The annuity plan QDRO required a lump sum payment to Reeves of "4.41% of [Kermendy's] total vested Account balance." It also required an additional payment to Reeves in the amount of $12,641.79 from Kermendy's share, which was to reimburse her for her share of the pension payments paid to Kermendy prior to the filing of the motion.
On March 28, Kermendy filed a cross-motion in which he challenged Reeves' right to QDROs, as well as the amounts they would allocate to Reeves. He argued that the JOD required nothing more than payment of one half of his contributions to the plans during the marriage. He denied withholding the fact of his retirement from Reeves, asserting that they had not had contact with each other in twenty years. Finally, he pointed to the fact that the law authorizing QDROs was not enacted until well after entry of the JOD.*fn2
The motion judge reserved decision following oral argument on April 15. She issued a written opinion and order on May 9, granting Reeves' motion and denying Kermendy's cross-motion. Both QDROs were filed by the judge. On June 24, the trial court ...