NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 19, 2012
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FM-14-888-05.
Damiano M. Fracasso argued the cause for appellant.
Robin C. Schwartz argued the cause for respondent (Schwartz Hunter, P.C., attorneys; Ms. Schwartz, on the brief).
Before Judges Graves, Espinosa, and Guadagno.
Plaintiff Papapit Sutthasinwong and defendant Poovadol Sutthasinwong were married in 1995. Two children were born of the marriage, now ages seventeen and fifteen. The parties' judgment of divorce, which incorporated a property settlement agreement (PSA), is dated December 14, 2005. Defendant appeals from two orders entered on August 26, 2011. For the reasons that follow, we affirm with one minor modification.
The parties agreed in their PSA that they would have joint legal custody of the children "under a shared parenting arrangement"; defendant would pay plaintiff alimony in the amount of $354.02 per month for a period of five years after the marital home was sold; defendant would pay child support in the amount of $199.00 per week in accordance with the child support guidelines worksheet annexed to the PSA; and, based on the parties' percentage of their combined income, defendant would pay 75% and plaintiff 25% of the children's non-reimbursable medical, dental, and prescription drug expenses, and extracurricular activities. The parties further agreed to share the children's "undergraduate college, junior college, vocational, or trade school education" costs based on the "percentage of their combined earnings at the time the child is starting school."
Pursuant to the PSA, the parties were to "equally divide all of the stocks, 401K, 403(b), 401(a), [and] IRA that [were] accumulated during the course of the marriage by both the husband and wife." The PSA also specified that the parties did not "have any pension interest separate from the 401K and IRA they each own." The parties acknowledged they read the PSA "in its entirety prior to signing, " they were "fully informed as to their legal rights and obligations, " and the PSA represented "a compromise and negotiated settlement." The child support guidelines worksheet attached to the PSA stated plaintiff's gross weekly income was $652 and defendant's gross weekly income was $1732.
In a case information statement (CIS) dated May 10, 2005, prior to the judgment of divorce, defendant listed the following assets: a 401K valued at $59, 480, a 403(b) valued at $11, 525, and a 401(a)/(k) valued at $7634. He did not list any stocks or stock options.
In a motion filed on June 20, 2011, plaintiff requested an order compelling defendant to cooperate in the preparation of Qualified Domestic Relation Orders (QDROs) "necessary to effectuate equitable distribution"; to provide documentation from all employers relating to his retirement benefits; to provide documentation of stock options acquired during the marriage and provide plaintiff the right to exercise a one-half interest, or pay plaintiff one-half the value of the options if already exercised by defendant. Plaintiff also asked the court to equally divide her IRA account and 401K acquired during the marriage and to award her counsel fees and costs based on defendant's "bad faith."
In plaintiff's CIS in support of her motion, she listed her gross income from 2010 as $77, 521, together with her alimony, which was scheduled to terminate in July 2011. Plaintiff also certified "it had just come to her attention" that defendant had a pension in the amount of $8472 and stock options in the amount of $7036 that were subject to equitable distribution. Plaintiff claimed she was entitled to counsel fees based on defendant's failure to disclose his pension and stock options and his failure to cooperate in the distribution of the retirement accounts.
Defendant opposed plaintiff's motion and filed a cross-motion. In his cross-motion, defendant stated, "The PSA does not entitle the plaintiff to any of my stock options. It does not entitle her to any pension money or survivor benefits either." In addition, defendant claimed the PSA contained a "clerical error" because the child support worksheet attached to the PSA did not take into account his alimony payments. According to defendant, the "clerical error" resulted in a "windfall overpayment" to plaintiff, and defendant asked the court to "apply ...