On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-591-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Espinosa.
Plaintiff appeals from the denial of his motion for reconsideration of a post-judgment matrimonial order.
The parties were married on July 7, 1956, and divorced on April 20, 1998. Their Judgment of Divorce (JOD) incorporated a settlement they had reached, which included a handwritten addendum that stated, "The defendant wife shall receive full former spouse military benefits and plaintiff shall notify the appropriate military officials to that effect." In addition, the JOD provided, "[t]he Defendant will continue to receive military PX and Commissary privileges and the Plaintiff will effect any instruments or documents which entitle a former spouse to receive these privileges."
Thereafter, defendant filed a request with the Department of Defense, Defense Finance and Accounting Service (DFAS), to have an election of former spouse coverage deemed to have been made by plaintiff. By letter dated September 2, 1998, DFAS acknowledged receipt of the request and advised defendant that plaintiff had been informed of her "deemed election" request and provided with the necessary forms for making that election. However, in December 2004, the DFAS advised defendant that the JOD was not sufficiently specific regarding that benefit and that, to be entitled to coverage, she would have to submit a revised divorce decree that "clearly state[d] that [she] should be entitled to the S.B.P. [Survivor Benefit Plan] coverage[.]"
Defendant filed a motion to enforce litigant's rights that was supported by a certification in which she stated that she had spoken to plaintiff; and that he agreed not to oppose the changes to the JOD she requested but refused to sign an amended JOD. In the interim, in September 2003, plaintiff had made an election to have his new spouse identified as his beneficiary for S.B.P. benefits. Nonetheless, a consent order dated October 23, 2007 - drafted by plaintiff's counsel - was executed by the attorneys for the parties and amended the JOD by stating the following:
1. That the Defendant, Mahalia J. Lipscomb is entitled to the Former Spouse Protect Fund, more commonly referred to At Department of Defense Retired and Annuity Pay section As Survivor Benefit Plan.
2. Annexed hereto to this Consent Order is the Retiree Account Statement of Plaintiff referencing the fund entitled "Former Spouse Protection Act" referencing the plan and fund that is subject of this Consent Order Amending Judgment of Divorce.
3. The Defendant Mahalia J. Lipscomb is the covered person of the Former Spouse Protection Plan of the Plaintiff.
In July 2010, plaintiff filed a motion to vacate the consent order. In support of the motion, he submitted a certification in which he stated he had instructed his attorney to oppose the motion to amend the JOD; he did not authorize his attorney to execute the consent order on his behalf; and he was unaware of the consent order until he received a copy of it from DFAS in April 2010. By order dated April 8, 2011, the court denied plaintiff's motion, noting plaintiff had failed to satisfy the requirements of Rule 4:50-2 by failing to file a timely motion within one year of the date of the consent order and failing to satisfy the burden of proof to obtain relief.
Plaintiff filed a motion for reconsideration. At oral argument on the motion, plaintiff's counsel again argued that plaintiff had not consented to the amendment of the JOD. He also argued that, consistent with his intent, the parties' ...