July 12, 2013
PAPAPIT SUTTHASINWONG, Plaintiff-Respondent,
POOVADOL SUTTHASINWONG, Defendant-Appellant
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 [the] windfall overpayment as an offset against plaintiff's equitable distribution interests."
Defendant also asked the court to recalculate his child support obligations based on changed circumstances, because "[p]laintiff's portion of the [parties'] combined income [was] 45.8% without alimony." Defendant requested a reduction in his child support obligation from $213.00 per week to $22.85 per week effective July 1, 2011. In addition, defendant asked the court to modify "all provisions of the [PSA] which obligate the parties to pay for costs associated with the children to now provide that the plaintiff shall pay 45.8% and the defendant shall pay 54.2%, which reflects the proportionality of their current incomes." In a CIS dated July 27, 2011, defendant certified his gross weekly income was $2, 191.85.
During oral argument on August 26, 2011, plaintiff's attorney emphasized that plaintiff was seeking to enforce the PSA and also to obtain her fair share of a pension and stock options that defendant failed to disclose. In response to plaintiff's motion, defendant's attorney initially stated, "[W]e don't even know if there's any pensions. In fact, the PSA says . . . there are no pensions. So now they're saying there's a pension." However, after the court pointed out that plaintiff had submitted an exhibit, which showed that defendant had a "non-contributory pension [in the amount of] $8472.08 with ADP, " defense counsel conceded that defendant did have a pension that was "subject to equitable distribution pursuant to the law."
With respect to plaintiff's motion, the court ordered: (1) the parties to split the cost of preparing the QDROs "necessary to effectuate equitable distribution"; (2) the parties to provide documentation from all former and current employers setting forth their retirement benefits; (3) the entry of a QDRO so that plaintiff would receive her equitable share of defendant's pension together with survivor benefits; (4) defendant to provide documentation of stock options acquired during the marriage and to provide plaintiff with the right to exercise her one-half interest in the stock options or to provide plaintiff with one-half of their value; (5) plaintiff to divide her IRA with defendant "by way of a roll-over to an IRA account in his name"; and (6) defendant to pay a partial counsel fee award of $750.
With regard to defendant's cross-motion, the court denied the request to reform the PSA by correcting a "clerical error." The court reviewed the child support guidelines, however, and reduced defendant's weekly child support obligation to $114, effective July 28, 2011, the filing date of defendant's motion. The revised child support figure was based on plaintiff's weekly income of $1547, without alimony, and defendant's weekly income of $2167. Additionally, plaintiff was ordered to pay 47% and defendant 53% of the children's extracurricular activities.
The court memorialized its rulings in two orders dated August 26, 2011. In a comprehensive statement of reasons attached to the orders, the court explained:
[Defendant] maintains that plaintiff is not entitled to any of his stock options or any pension money or survivor benefits . . . . At oral argument, through counsel, defendant seemed to question whether or not he had any pension benefits acquired during the marriage. This prompted plaintiff's attorney to remind defendant's counsel that she had attached exhibits as proof that pension benefits were acquired during the marriage, purportedly to the extent of over $8, 400. This triggered defendant's counsel to acknowledge that if such a pension did exist, the marital portion would be split. The court does not understand why defendant's responding certification did not simply acknowledge the existence of a marital pension benefit as set forth in plaintiff's initial certification so that consensus could have been reached on the distribution of same without motion practice.
. . . .
Next, it is accepted by our courts that property, regardless of its source, in which a spouse acquires an interest during the marriage, is subject to distribution in the event of a divorce. Painter v. Painter, 65 N.J. 196, 217 (1974). The defendant is correct that for purposes of determining what property is eligible for equitable distribution, the period of acquisition is deemed to have terminated once a complaint for divorce is filed. Id. at 218. This principle is not at odds, however, with the principle enunciated by plaintiff that assets derived from the marital partnership, even if vested post-complaint, would be shared. The same is true for newly discovered assets or assets which were not disclosed due to fraud, misrepresentation, or inadvertence. See Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 4:50-1 (2013).
In the within matter, the parties entered into a PSA which specifically confirmed that neither party had any pension interest separate from the 401(k) and IRA each owned. Apparently, such was not the case at the time of final hearing. Also, as set forth [in] the PSA, the parties agreed to equally divide all the stocks accumulated during the course of the marriage. Defendant's CIS from [the] time of final hearing neither reflects stocks or stock options on [the] asset page of his typewritten CIS (although there is a short, handwritten reference to stocks on page 4 without a value and there is no way of knowing when that handwritten notation was inserted). His failure to disclose his interest in stocks/stock options and a pension cannot now be used as a shield to prevent the plaintiff from sharing in assets acquired during the marriage.
The court also explained its reasons for denying defendant's request to reform the PSA:
The court cannot disagree with plaintiff's assessment that the alimony she received appears to be on the low side, but even without this assessment, defendant provides no proof that the alimony, child support and equitable distribution provisions were accepted as anything other than an interrelated package discussed with the parties and counsel prior to the execution of the agreement and final hearing. . . . Ultimately, it is the defendant's burden to prove to the court that the PSA should be reformed and the court is not satisfied that he has met his burden.
Next, as defendant sought a retroactive credit for child support, he argues that no consideration was given to the physical sharing of parenting time the parties were to enjoy under the PSA. . . . [Plaintiff] certifies that in all the years following the final hearing from 2005 to 2010, defendant did not exercise parenting time for one month during the summer when he traveled to Thailand. She also asserts that there were additional days, as many as 20 or more, that the defendant would fail to exercise his scheduled parenting time. Compounding these factors, plaintiff advises that defendant failed to pay child support whenever he would travel for the month to Thailand so she simply did not receive the amount of support due to her. At oral argument, defendant admitted that he generally enjoys a 3-week period in Thailand and that he does not exercise parenting time with the children. This has been his practice for the past few years. Again, it is defendant's burden to prove he is entitled to retroactive relief, and the court is not persuaded he has met this burden. . . . Nevertheless, going forward, both parties acknowledge that a review of the current child support obligation is appropriate.
In addition, the court determined it was appropriate to review the parties' contributions to their children's extracurricular activities. Based on the parties' "updated CIS's and increased incomes, " the court concluded plaintiff should contribute 47% and defendant 53%.
Moreover, in a letter of amplification submitted pursuant to Rule 2:5-1(b), the court stated:
The equitable authority of courts to modify property settlement agreements incorporated into final judgments is well established. See e.g Carr v. Carr, 120 N.J. 335, 346-49 [(1990)]. Generally, when our courts have reformed agreements, the reformation has been on the basis of unconscionability, Miller v. Miller, 160 N.J. [408, 418-19 (1999)], or mutual mistake, or mistake accompanied by concealment by one of the parties. See Capanear v. Salzano, 222 N.J.Super. 403, 407 (App. Div. 1988). The party asserting reformation seeks to improve the PSA by correction of an error, and must prove by clear and convincing evidence that reformation is necessary to correct an evil or abuse. See id. at 407-08 [(]wherein the court held that ". . . where reformation is premised upon mistake in the preparation of the agreement, 'there must be clear and convincing proof' that the contract in its reformed, and not original, form is the one that the contracting parties understood and meant it to be; and as, in fact, it was but for the alleged mistake in its drafting."[)] The court maintains that defendant did not meet his burden.
Among other things, defendant argues on appeal that the court erred in denying his motion to reform the PSA and in determining the parties' parenting time without a plenary hearing; the court erred by failing to modify the higher education and unreimbursed medical provisions of the PSA based on the parties' proportionate incomes; and the court erred by ordering that the reduction in his child support payments was effective July 28, 2011, rather than July 1, 2011. We agree that plaintiff should pay 47% and defendant 53% of all "non reimbursable medical, dental, and prescription drug expenses" for the children. However, defendant's remaining arguments are clearly without merit, Rule 2:11(e)(1)(E), and require only the following comments.
Our review of a trial court's fact findings is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "Reversal is warranted only when a mistake must have been made because the trial court's factual findings are 'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Reese v. Weis, 430 N.J.Super. 552, 567 (2013) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
Additionally "[t]he basic contractual nature of matrimonial agreements has 'long been recognized.'" Sachau v Sachau 206 N.J. 1, 5 (2011) (quoting Petersen v Petersen 85 N.J. 638 642 (1981)). "As a general rule courts should enforce contracts as the parties intended." Ibid. "Similarly it is a basic rule of contractual interpretation that a court must discern and implement the common intention of the parties" Ibid .Nevertheless the incorporation of a property settlement agreement "into a divorce decree does not render it immutable" Konzelman v Konzelman 158 N.J. 185 194 (1999). "Courts have continuing power to oversee divorce agreements and the discretion to modify them on a showing of changed circumstances that render their continued enforcement unfair, unjust, and inequitable" Ibid. (internal citations omitted).
In this case, based on our examination of the record, we are satisfied that the trial court's findings and conclusions are supported by sufficient credible evidence and the court correctly applied well-settled legal principles. Accordingly except for the one modification pertaining to the unreimbursed medical provision of the PSA, we affirm the orders entered on August 26, 2011.
Affirmed as modified.