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Wilson A. Valdez v. Sandra Cagua-Valdez

December 3, 2012

WILSON A. VALDEZ, PLAINTIFF-APPELLANT,
v.
SANDRA CAGUA-VALDEZ, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Union County, Docket No. FM-20-1767-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 16, 2012 --

Before Judges Yannotti and Hoffman.

Plaintiff Wilson A. Valdez appeals from orders entered by the Family Part, which provided for the execution of a Qualified Domestic Relations Order (QDRO) distributing the parties' retirement and investment accounts. For the reasons that follow, we affirm.

The parties were married on February 22, 2000. On May 26, 2009, plaintiff filed a complaint for divorce. On June 10, 2010, the parties executed a property settlement agreement (PSA), which was incorporated in the final judgment of divorce entered on that date. Article IX of the PSA addressed the distribution of the marital portion of parties' retirement and investment accounts. It stated as follows:

9.1 The parties have agreed to equally divide the marital portion of their respective retirement and investment accounts set forth below, defined as those funds earned in each account between the date of the marriage and the date of the complaint filing, . . . less any contributions made subsequent to the date of the divorce complaint. The accounts shall be equalized by either tax free rollover or a [ ]. Wife shall advise Husband of the name of the qualified tax-exempt vehicle to which her distribution interest will be deposited and Husband shall complete the appropriate rollover within thirty (30) days of receiving notice of Wife's account.

Pension evaluations [at] Troyan Inc. [Troyan] prepared evaluations of both parties' pensions and determined that Husband's marital present cash value was $18,417 and Wife's marital present cash value was $10,185. The following accounts and values are those in the Husband's name; EIC Associates 401(k) (ING) with a value of $56,502 as of September 30, 2009; Fidelity Rollover with a value of $11,485 as of September 30, 2009; Traditional IRA with a value of $5,903 as of September 30, 2009; Roth IRA with a value of $9,982 as of September 30, 2009; Local 731 Annuity Fund with a value of $15,161 as of December 30, 2009; and Supplemental Benefits Program with a value of $14,125 as of December 30, 2009.

The following accounts and values are those in the Wife's name: First Fidelity IRA with a value of $2,469 as of March 31, 2010. All accounts will be divided by July 10, 2010 through the assistance of [the parties' attorneys].

Defendant's attorney thereafter sent plaintiff's attorney a QDRO to divide the aforementioned accounts. Plaintiff objected to the QDRO's division of his Local 731 Annuity Fund on two grounds. He asserted that Troyan had erroneously calculated the marital portion of that account as of September 30, 2009, and should have made its calculation as of May 26, 2009, when the divorce complaint was filed. He also asserted that the Local 731 Annuity Fund should not be distributed because it would not vest until plaintiff had five years of credited service.

On May 11, 2011, defendant filed a motion to compel plaintiff to execute the QDRO that was provided to him. Defendant also sought counsel fees and costs related to the motion. On June 21, 2011, plaintiff opposed the motion and filed a cross-motion seeking an order modifying the PSA "to reflect the proper amounts" of the retirement and investment accounts subject to distribution. He requested that the Local 731 Annuity Fund be exempt from distribution until October or November 2012, when it would vest.

In addition, plaintiff asked the court to compel plaintiff to provide proof of life insurance, vacate the marital residence or pay rent; pay half of certain expenses for the marital residence; provide him with a copy of the key to the residence; provide information about a contractor hired to perform work on the house; and return his power tools. Defendant opposed the cross-motion and asked the court to order defendant to return half of the amount of a certificate of deposit that defendant had recently "cashed in."

The court considered the motions on August 19, 2011. The court determined that defendant was entitled to enforce the PSA using the accounts and balances set forth in the agreement. The court ordered plaintiff to execute the QDRO as drafted. The court also ordered plaintiff to provide proof of life insurance. The court denied all other relief sought by the parties. The court memorialized its decision in an order dated August 19, 2011.

Plaintiff did not sign the QDRO as required by the court's order. On September 12, 2011, defendant's attorney asked the court to designate an attorney-in-fact to execute the QDRO on plaintiff's behalf. On September 13, 2011, the court designated an attorney to execute the QDRO, and the QDRO was executed that day. A week later, plaintiff wrote to the court and asked that it stay the September 13, 2011 order pending appeal. It is ...


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