On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-892-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 6, 2012 -
Before Judges Messano and Guadagno.
In this post-judgment matrimonial matter, defendant Sean Orr appeals from portions of a November 3, 2010 order that divested him of a 50% interest in plaintiff Michelle Orr's 401(k) and pension plan. He also appeals from the January 10, 2011 order denying his motion for reconsideration. For the reasons that follow, we reverse.
The parties were married in 1989 and divorced on May 18, 2004. The judgment of divorce, which incorporated a property settlement agreement (PSA), contained a section entitled "Pensions/401K's/IRAs" that provided in pertinent part:
The parties agree that they shall split equally Wife's 401K and pension from BASF by way of a Qualified Domestic Relations Order. The Qualified Domestic Relations Order will be prepared, at equal cost to the parties.
To fully comprehend the issues presented, a thorough review of the parties' actions and the extensive litigative history regarding this provision is necessary.
Defendant's January 2003 case information statement valued plaintiff's 401(k) and pension at $90,000. Plaintiff does not dispute this estimate, nor does she challenge defendant's assertions that, after the marital home, her 401(k) and pension comprised the parties' most valuable marital assets, and the division of these assets was a critical component of the negotiations leading up to the signing of the PSA.
On August 17, 2005, plaintiff's counsel at the time, Danielle Bohlen of Heymann & Fletcher, sent defendant's counsel a letter indicating that she had contacted Pension Appraisers Inc. to prepare a Qualified Domestic Relations Order (QDRO) to divide the 401(k) and pension. Bohlen sought defendant's contribution of $527.50, representing half of the quoted fee for the QDRO preparation. She received no response.
On January 25, 2006, plaintiff filed a motion seeking past due child support. She also sought to compel defendant to pay his share of the QDRO fee. By order dated March 3, 2006, defendant was directed to provide plaintiff's counsel "the sum of $527.50 for his share of the preparation of QDRO, upon being provided with copy of application." Defendant was also ordered to pay counsel fees of $1,500 within 60 days.*fn1
On August 28, 2006, Bohlen sent a letter to defendant's counsel noting that defendant had not paid his share of the QDRO fee and Pension Appraisers had raised their rates. She provided an updated fee schedule, indicating that defendant's share of the preparation fee would be $542.50, and requested a check in that amount made payable to Pension Appraisers.
On September 11, 2006, Bohlen sent a follow-up letter indicating that she had learned of another retirement fund that had to be divided, requiring an additional QDRO and an added fee of $172.50. She again requested that defendant forward a check payable to Pension ...