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Green v. Green

United States District Court, D. New Jersey

September 24, 2012

George GREEN, Plaintiff,
v.
Isabella M. GREEN, Defendant.

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[Copyrighted Material Omitted]

Page 293

Mr. George Green, Glassboro, NJ, pro se.

William M. Tambussi, Esq., Kristin Lee Van Arsdale, Esq., Brown & Connery, LLP, Westmont, NJ, for Defendant Isabella M. Green.

OPINION

SIMANDLE, Chief Judge:

I. INTRODUCTION

This matter is before the Court on the motion of Plaintiff George Green (" Plaintiff" or " Mr. Green" ) to strike Defendant's legally insufficient affirmative defenses [Docket Item 19], the motion of Defendant Isabella M. Green (" Defendant" or " Mrs. Green" ) for summary judgment [Docket Item 20] and Plaintiff's cross motion for summary judgment [Docket Item 26]. For the reasons discussed herein, the court will grant Defendant's motion for summary judgment, deny Plaintiff's cross motion for summary judgment and dismiss

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as moot Plaintiff's motion to strike Defendant's affirmative defenses.

The instant action arises out of the Defendant filing a motion in state court seeking to enforce her rights under a Qualified Domestic Relations Order to a percentage of the Plaintiff's retirement benefits. Since the order at issue is a Qualified Domestic Relations Order as defined under the Employee Retirement Income Security Act (" ERISA" ), 29 U.S.C. § 1056(d)(3), the Defendant's state law claims are not preempted by ERISA and Plaintiff's claims for declaratory and injunctive relief must be dismissed.

II. BACKGROUND

The Plaintiff and the Defendant were lawfully married on December 6, 1954. (Def.'s Statement of Facts at ¶ 1.) The Defendant subsequently filed for a divorce on December 11, 1990. (Def.'s Statement of Facts at ¶ 1.) A final judgment of divorce was entered on June 24, 1991. (Def.'s Ex. E, Final Judgment of Divorce.) The final judgment of divorce provided that the Defendant would be entitled to receive 45 percent of the Plaintiff's pension. Specifically, the divorce order states:

4. [Mrs. Green] shall be entitled to receive forty-five percent (45%) of the gross pension received by [Mr. Green] by virtue of his retirement with the United States Navy. A Qualified Domestic Relations Order shall be drafted by counsel for [Mrs. Green].
5. [Mrs. Green] shall be entitled to receive fifty percent (50%) of the gross pension enjoyed by [Mr. Green] by virtue of his retirement from the United States Postal Service. A Qualified Domestic Relations Order shall be drafted by counsel for [Mrs. Green].

(Def.'s Ex. E, Final Judgment of Divorce, at ¶¶ 4-5.)

After multiple amendments, the final Qualified Domestic Relations Order was entered on February 22, 1993. This order provides that Defendant Mrs. Green is the alternate payee of Plaintiff's benefits from the United States Postal Service/Civil Service Retirement System. The order provides the full name and current and last known address of Plaintiff and lists the Plaintiff as the participant of the plan. The order further provides the full name and current and last known address of the Defendant and lists her as the alternate payee. The order states in pertinent part:

5C. This order applies to any and all monies receivable by the participant from the United States Postal Service/Civil Service Retirement System. It shall also include and fully apply to and bind any successor plan or additional monies subsequently received by the participant.
Allocated Percentage— The percentage of the gross retirement benefits of the participant which became the property interest of the alternate payee. The alternate payee is entitled to receive directly from the pension a monthly annuity benefit payable until the earlier of her death or the death of the retirant. This monthly payment to the alternate payee shall be forty-seven and one half percent (47.5%) of the base monthly gross retirement benefits payable to George Green as of June 24, 1991.
5C. In addition to that which is set forth in paragraph D, above, the alternate payee shall participate in all such increases/adjustments that are enjoyed by George Green. The property interest of the alternate payee and these increases/adjustments shall be fifty percent (50%) of all such increases/adjustments.
5F. Payment Beginning Date (for Alternate Payee) shall be earliest date

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subsequent to the qualification of this Domestic Relations Order when it is administratively possible for the United States Postal Service/Civil Service Retirement System to begin distribution of the alternate payee.
...
7. This Order is entered pursuant to a Final Judgment of Divorce entered on the 24th day of June, 1991. That Judgment has not been modified or otherwise changed. That Judgment of Divorce has been made pursuant to the Domestic Relation s [sic] law of the State of New Jersey, which governs the division of marital property between spouses.
8. Since it is intended that this Order shall qualify as a Domestic Relations Order, the provisions hereof shall be administered and interpreted in conformity with ERISA and the Internal Revenue Code. The Court shall retain jurisdiction to amend this Order only for purposes of establishing or maintaining its qualification as a Domestic Relations Order under ERISA and/or the Internal Revenue Code, and either party may apply to the Court for such amendment.

(Pl.'s Ex. E.)

This Qualified Domestic Relations Order was accepted by the United States Office of Personnel Management (" OPM" ) and the Defendant began and continues to receive monthly payments from the Plaintiff's pension plan. (Pl.'s Answer to Def.'s Statement of Undisputed Facts at ¶ 11 and Pl.'s Counter Statement of Material Facts at ¶ 20.)

Sometime later, Mrs. Green learned that Plaintiff's pension had increased from $1,606 a month to $2,857 a month as a result of Plaintiff's service in the Navy; however, she was not receiving an increased monthly payment. In September 2009, Defendant applied to the Defense Finance and Accounting Service for her portion of the Plaintiff's Navy retirement pay pursuant to the Final Judgment of Divorce and Qualified Domestic Relations Order. (Def.'s Statement of Facts at ¶ 12.) The Defense Finance and Accounting Service informed the Plaintiff that his military retired pay was in " non-pay status" and therefore no funds were available for the Defendant. (Def.'s Statement of Facts at ¶ 13.)

Consequently, the Defendant then filed a motion to enforce payment of the monies due to her from the Plaintiff's Navy pension in New Jersey state court. (Def.'s Ex. G.) The Plaintiff filed opposition to the motion and also filed a cross motion seeking an order preventing the Defendant from requesting any further form of relief or making any future claim to payment from his military pension. (Def.'s Statement of Facts at ¶ 15.) The Superior Court of New Jersey, Chancery Division-Family ...


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